Worker moved to work-sharing program and then told to look for more work
A Nova Scotia company’s warning that a part-time worker should look for more work didn’t constitute notice of a dismissal that happened six weeks later, the Nova Scotia Small Claims Court has ruled.
Perry Costa, 54, was an AutoCAD operator and electrical layout technician for Electec Engineering and Design Incorporated, a professional engineering company in Lower Sackville, N.S. Costa was hired in December 2006 and he didn’t have any issues with his performance or any misconduct. His job involved implementing lighting and electrical design into architectural and drafting designs created in AutoCAD, a computer-assisted drawing program.
In October 2013, Electec informed Costa that business was slow and there was a lack of work for him. However, instead of terminating his employment, the company put him on a work share program in which he and another technician would share the work. Costa was to work two days per week and the remaining three days would be paid by Service Canada at 55 per cent of his regular pay. The company advised him this arrangement was expected to last about six months, but it was possible it could be extended for another six months after that as the company would continue to look for additional work. For the company, things could go either way – business could pick up and Costa would be rehired full-time, or things wouldn’t improve and Costa would be laid off.
On Dec. 4, 2013, Electec’s co-owner advised Costa he should start looking for additional work but it wasn’t necessary to seek a new job. The co-owner testified he didn’t say not to look for a new job but that Costa’s work might be ending.
On Jan. 21, 2014, Costa arrived at work and was informed Electec no longer required his services as it “couldn’t afford him.” He was given a termination letter and an offer of four weeks’ severance pay on the condition he sign a release. Costa declined to sign.
Costa sued for wrongful dismissal, claiming Electec didn’t provide him with reasonable notice. Electec argued Costa was notified on Dec. 4 his job was ending and had several weeks of working notice before his actual termination.
The court found the Dec. 4 meeting did not meet the requirement for notice of termination, which had to be “specific, unequivocal and clearly communicated to the employee that his employment will end on a certain date.” Though Electic may have been aware its need for Costa was coming to a close, the co-owner didn’t say anything definitive to Costa that he was being terminated. There was no specific date and no mention of termination until Jan. 21, said the court.
The court also found when Costa was given the option of performing shared work instead of being laid off, it wasn’t notice he was being terminated, but rather was interpreted as the company wanting to keep him in any way possible instead of letting him go.
The court determined the actual notice of termination came on Jan. 21, 2014, and the notice period began on that date with no working notice.
