Truck driver entitled to 15 months' pay in lieu of notice
A British Columbia worker was wrongfully dismissed when he never returned to work following heart surgery due to miscommunication between himself and his employer, the BC Supreme Court has ruled.
The 68-year-old worker was a commercial truck driver for Tahtsa Timber, a logging contracting company based in Burns Lake, B.C. He was hired between 2003 and 2005 and was considered a safe driver.
In August 2019, the worker had a medical emergency that led to heart surgery the following month. His doctor recommended that he stay off work for three months.
Three months passed, but the worker wasn’t ready to return to work. He had a discussion with Tahtsa’s truck foreman and they agreed that the worker would take another few months and return in the summer of 2020.
On June 17, 2020, the worker sent a doctor’s note that confirmed he was fit for work. However, according to the worker, he tried to contact the foreman but never heard back from him.
Waiting for calls
The worker said he went to Tahtsa’s office in August to get some personal items he had left behind, and he spoke to the foreman, discussing the possibility of fall hauling. The foreman said he would call the worker later and gave him a phone. However, he didn’t call, according to the worker.
The foreman disagreed, claiming that he had called the worker several times to discuss his return to work, but the worker didn’t respond. However, with no further communication by September, he assumed that the worker would not be coming back.
By October, the worker didn’t think Tahtsa would be bringing him back, so he found work with another employer, where he worked for two months operating a commercial vehicle. He eventually left because the pay was low, he had no seniority, and he didn’t get along with another employee.
The worker filed a claim for wrongful dismissal asking for 23 months’ pay in lieu of notice, saying that his age and medical history made it difficult to find alternative employment, particularly in the commercial trucking industry. He also claimed aggravated and punitive damages, claiming that Tahtsa punished him for having a heart attack and discriminated against him because of his age.
Tahtsa argued that it didn’t terminate the worker’s employment and he in fact abandoned his job. It also said that, in the alternative, the worker was entitled to a maximum notice period of 12 months.
Read more: A worker didn’t intend to abandon her position, but her refusal to support her absences with medical information was just cause for dismissal, the Nova Scotia Labour Board found.
Misapprehension of intentions
The court noted that both the worker and Tahtsa were “operating under a misapprehension of the other’s intentions due to a lack of communication.” Neither was sure of what the other was doing, but both sides acknowledged that the employment relationship terminated, said the court.
The court found that when the worker and the foreman discussed fall hauling in late August 2020, the employment relationship was still intact and Tahtsa expected there to be work for the worker to perform.
However, there was no further communication and Tahtsa assumed the worker wasn’t returning – but the company didn’t take any meaningful steps to confirm that assumption and essentially terminated the employment relationship, said the court, as there was no clear and unequivocal action on the worker’s part to show that he resigned from employment with the company.
“The corresponding failure to provide any further work to the [worker] amounts to a clear and unequivocal communication that the [worker’s] employment had been terminated,” the court said.
Read more: A federally regulated employer was entitled to dismiss a worker on medical leave for working with a competitor during the leave, according to an adjudicator.
The court found that the worker’s position of commercial truck driver – which required significant responsibility in operating a large piece of equipment on public roadways with little supervision – along with his 15-plus years of employment and relatively advanced age of 68 pushed the reasonable notice entitlement to the higher range. His age also made it more difficult to find replacement employment, as evidenced by the one job he found wasn’t equivalent or suitable – although the worker didn’t outline the steps he took to find employment.
The court determined that the worker was entitled to 15 months’ reasonable notice. However, it found no justification for aggravated or punitive damages, as the worker’s employment ended largely because of miscommunication, not any malice or bad faith by Tahtsa.
Tahtsa was ordered to pay the worker 15 months’ pay in lieu of notice, or $73,879, minus his earnings from his two-month job in late 2020. See Burd v. Tahtsa Timber Ltd., 2022 BCSC 1372.
