Company provided extensive career transition counselling and potential job opportunities
A court has awarded an Ontario worker 16 months’ notice after the worker was paid statutory minimums in the wake of her dismissal after 21 years of service.
Cherrie Fermin, 52, started work with Intact Financial Corporation in August 1994 as a claim adjuster in Mississauga, Ont. She moved to various similar jobs during her time with Intact, eventually achieving an intermediate-level claims representative position. Her duties included investigating routine and moderately complex losses, evaluating claims, ensuring prompt and equitable settlement of claims, negotiating with claimants, lawyers and adjusters to settle claims up to $25,000, documenting claims files, customer service, and keeping up-to-date on Intact’s insurance products, services and techniques.
Intact terminated Fermin’s employment on Nov. 24, 2015, after 21 years of service. The company gave her eight weeks’ pay and benefits along with 21 weeks of severance pay — equal to the minimum notice requirements under the Ontario Employment Standards Act, 2000. Intact also provided Fermin with career transition counselling, such as access to online courses, a job-search service, social media networking strategies, and networking opportunities.
Fermin sued for wrongful dismissal, claiming the statutory minimum notice wasn’t enough for someone with her service and position. She argued she deserved between 19 and 21 months’ notice, or pay in lieu of.
After her dismissal, Fermin applied to 77 positions and participated in six telephone interviews. She used the counselling services offered to her and met with a consultant to discuss job search strategies, in addition to searching work sites and applying to recruitment agencies.
Intact’s human resources consultant provided Fermin with 58 job postings for workers of varying experience, and Fermin applied to 12 of them. However, she wasn’t successful on any of them. During part of this time, Fermin was ill and took some “recovery time” to come to terms with her dismissal.
Intact acknowledged that, since there were no contract provisions limiting Fermin’s notice entitlement, she was entitled to more than the statutory minimum. However, the company argued that she had been in a “mid-level administrative” position with no managerial or supervisory responsibilities. It also argued Fermin didn’t take reasonable steps to mitigate her damage, as she didn’t apply to all the positions its HR consultant passed on to her. Intact’s position was that Fermin shouldn’t get more than 15 months’ notice.
The Ontario Superior Court of Justice found that Fermin’s job wasn’t strictly administrative, as she had a certain level of responsibility in investigating, evaluating, and settling claims up to $25,000. She also had to know “the intricacies of policy endorsements as well as fault determination rules” for determining fault and recommending coverage. As a result, the court determined Fermin’s position was “a mid-level technical position” that would deserve notice on the high end.
The court also disagreed with Intact’s argument that Fermin failed to mitigate her damages with a passive job search. She used the services the company offered her and it wasn’t necessary for her to apply for every position available, said the court.
It was reasonable for Fermin to take some time to deal with the emotional impact of being dismissed from a long-term job, and to restrict her job search to areas with a reasonable commute time, especially since she already lived in an area with a “large employment marketplace,” the court said, adding that not every position Intact passed along to her would have met her financial and geographical needs.
“The mitigation efforts need not have been perfect, or even to the standards of a human resources professional, just reasonable,” said the court. “I am not satisfied that any of the positions suggested by (Intact) to which she did not apply would have resulted in comparable employment had she applied.”
Intact was ordered to pay Fermin 16 months’ pay and benefits in lieu of notice, minus what the company had already given her and any amounts earned by Fermin since her dismissal. Since this period was still ongoing, the court ordered the funds to be held until the end of the notice period and be reduced by any employment income earned by Fermin in that time. See Fermin v. Intact Financial Corp., 2016 CarswellOnt 14523 (Ont. S.C.J.).
