ARTICLE
17 April 2024

How (Not) To Terminate An Employee

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Lerners LLP

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John Teljeur was employed as the General Manager of a golf resort in Haliburton, Ontario. On December 6, 2021, he was terminated without cause.
Canada Employment and HR
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John Teljeur was employed as the General Manager of a golf resort in Haliburton, Ontario. On December 6, 2021, he was terminated without cause. The resort owners had decided to hand management over to a third party. In apparent anticipation of his termination, Mr. Teljeur secretly recorded the meeting in which his employers shared this news.

In Teljeur v. Aurora Hotel Group, 2023 ONSC 1324, he brought a motion for summary judgment, seeking among other things, damages for wrongful dismissal reflecting a reasonable notice period of 10 months, loss of fringe benefits (equivalent to 10% of damages for wrongful dismissal), reimbursement of expenses and "moral damages" for the resort's breach of good faith in the sum of $20,000.

Examples of the employer's poor conduct included not providing Mr. Teljeur with written notice despite at least three requests, failing to deliver severance pay in a timely manner, failing to reimburse him for out-of-pocket expenses, and encouraging him to resign because "it is better off for you to do it."

The motion judge awarded damages for reasonable notice for seven months, plus lost benefits, expenses of $16,680, and moral damages of $15,000.

Aurora Hotel Group paid the $16,680 in expenses and accepted the notice period of seven months, but appealed the remainder of the decision. It took the position that the motion judge* erred in not deciding the question of whether Mr. Teljeur made reasonable efforts to mitigate. It also contested the 10% award for benefits lost on the basis that it had not been established, and the award of moral damages.

* In the Court of Appeal reasons, the motion judge is erroneously described as the trial judge.

In its brief endorsement, the Court of Appeal for Ontario set out why it disagreed with the appellant's position on all of the issues.

With respect to mitigation, the resort owners had pointed out that Mr. Teljeur's attempts to secure new employment were sparsely documented and consisted of searches on Indeed, Zip Recruiter, and LinkedIn. The motion judge had disagreed, finding there was "no evidence that a better job search effort by the plaintiff could have resulted in the plaintiff obtaining other similar employment". This might have been particularly true since this termination took place in December of 2021 when pandemic restrictions were still in effect. The brevity of the Court of Appeal's position on this point may reflect the absurdity of the argument, as the motion judge had clearly considered the mitigation issue in no less than 17 paragraphs:

The appellants acknowledge that the trial judge's analysis engaged with the question of whether the appellants have satisfied their burden of establishing that the steps taken by the respondent would have resulted in employment. This analysis clearly proceeds from the trial judge's determination that the respondent made reasonable efforts to mitigate (para 3).

The appellant's submission that the award of moral damages was not justified was met with similarly brief treatment by the Court of Appeal, which added that the secret recording had captured "disturbing aspects about the plaintiff's termination" (para 47). In addition to encouraging him to resign, the employer breached its obligations under the Employment Standards Act by failing to provide written notice, deliver final pay in a timely manner, and reimburse the out-of-pocket expenses of $16,680, which were significant considering Mr. Teljeur's annual salary of $72,500.

The facts that the trial judge relied on to award moral damages were in fact pleaded and the trial judge made no error in making the award. The conduct of the appellants was deserving of censure, and we see no reversible error (para 5).

Partial indemnity costs in the amount of $5,500 were awarded to Mr. Teljeur by the Court of Appeal.

TAKE-AWAYS

Surreptitious recording of meetings and telephone conversations is becoming more common and little can be done to guard against it. Recordings are admissible in court proceedings and should encourage employers to ensure that terminations and the discussions surrounding them are conducted professionally.

Arguably, this was a small sum of money that the Aurora Hotel Group opted to fight about, and their weak arguments are reflected in the Court of Appeal's straightforward reasons. Whether or not to appeal a decision should be carefully considered. In this case, the appellant's arguments were weak, and the recording made by the former employee cast it in a negative light that proved impossible to overcome.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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