Continuing our seasonal theme of “legal gifts” for employers, a recent decision of the British Columbia Provincial Court provides a glimmer of hope for employers with respect to notice of termination of employment for short service employees.
In Brash v. Gustafson’s Auto Service Ltd., 2019 BCPC 259, the plaintiff, William Brash, accepted employment as Sales Manager with Gustafson’s Auto Service Ltd., a car dealership located in Williams Lake, BC. Sadly, Brash’s performance did not meet expectations and his employment was terminated after three weeks. The employer claimed that the termination occurred during the three-month probationary period and Brash was therefore not entitled to any notice or payment in lieu of notice. According to Brash, there was no probationary period; he claimed he had been guaranteed a minimum of three months’ employment plus reimbursement for his relocation expenses from Richmond to Williams Lake.
As the judge commented, this case provides a cautionary tale regarding conducting business in the modern era based on a handshake. None of the details of the employment relationship had been put in writing. The employer had no evidence to establish that the parties had agreed to an express three-month probationary period or the consequences of the employee failing to pass probation. Instead, Brash was entitled to reasonable notice of termination of employment without cause.
In terms of the notice period, Brash was not able to establish that he had been guaranteed three months of employment. As a result, the court considered the applicable factors for determining notice at common law: (i) managerial position – Sales Manager; (ii) short service of three weeks; (iii) middle age - 50’s; and (iv) similar employment may not have been readily available in Williams Lake. Based on these factors, the judge awarded a reasonable notice period of three weeks. Such notice period is on the low end of reasonable notice periods awarded to short service employees and was in our view a legal gift to the employer.
The plaintiff had relocated from Richmond to take the Sales Manager position in Williams Lake and sought reimbursement of his relocation expenses. The court held that the terms of employment did not expressly include a relocation allowance and these expenses had been incurred before the breach of the contract. As such, no damages were awarded.
Brash also sought an award of costs to cover his estimated expenses for moving back to Richmond from Williams Lake. The court denied the award of costs on the basis that these costs did not flow naturally from the failure of the employer to give reasonable notice and the costs would be borne by the plaintiff in any event.
Overall, this decision is favourable for employers and contrary to a trend in wrongful dismissal cases where short service employees are awarded significantly longer notice periods. While in the days of auld lang syne, business may have been conducted based on a handshake, this decision provides a timely reminder for employers to put the terms of employment into an enforceable offer letter or agreement. Employers who are looking for a New Year’s resolution would do well to put in place a form of employment contract in 2020. All members of our Labour, Employment and Human Rights Group have experience in this area and would be happy to assist employers in achieving that resolution.
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