B.C. worker claimed 13 months’ reasonable notice entitlement for 5 years of service, but his role wasn’t as significant as he claimed
A British Columbia worker is entitled to five months’ reasonable notice, not the 13 months he claimed by exaggerating his role with his former employer, the B.C. Supreme Court has ruled.
Kartners Bathroom Accessories is a supplier of bathroom products to individuals, builders, and hotels. It’s a small company that started in 2010. In October 2013, the owner of Kartners contacted a recruitment agency to help him find a part-time bookkeeper.
Jose Adriano, 54, applied for the bookkeeper position, highlighting his experience as a finance and administration officer in his native Philippines as well as his commerce degree earned there. He also worked in bookkeeping and office administration after he moved to Canada in 2010.
Kartners hired Adriano as an independent contractor on Oct. 23, 2013, and Adriano started providing services to the company on a part-time basis six days later, in an inside sales support role. Kartners saw him as an “integral part of the team,” but as the company grew it hired a controller who had a Chartered Professional Accountant (CPA) designation and operational training in accounting — qualifications that Adriano didn’t have.
Adriano identified his job duties as including that of controller managing the overall financial activities of the company, logistics manager, purchasing and inventory manager, operations manager, project management, sales support, administration, and IT. The company’s owner encouraged him to use the title “controller” to add legitimacy to his role in the small business until the official controller was hired in May 2018, but said it was he, not Adriano, who managed the overall financial operations. Adriano prepared paycheques but the accountant made all the deductions and workers’ compensation remittances. In addition, Adriano was not responsible for preparing financial reports, managing cash flow or benefits. He assisted with various operations but did not manage them, said the owner.
In August 2016, Kartners took on Adriano as an employee and began paying him an annual salary based on an hourly rate. Adriano also received a bonus each year. Towards the end of 2016, the owner provided Adriano a choice of either a substantial salary increase with a “fair bonus” at the end of the year, or a modest salary increase with a generous bonus. Adriano chose the latter.
Adriano claimed that he would discuss bonuses for all Kartners employee with the owner each year and he prepared the cheques himself, but the owner denied discussing a bonus as part of Adriano’s compensation. According to the owner, “there were no promises made with respect to bonus” and starting in 2014 the company started paying a Christmas bonus to active employees instead of giving them a gift. The amount of the bonus was based on how well the business had done that year and whether the company could afford it. The company did well in 2016 and 2017, so the bonuses those years were large to reflect that, he said.
Termination without cause or notice
On Oct. 30, 2018, the owner met with Adriano and gave him a termination letter with an offer of 14 weeks’ pay, his final paycheque, another cheque for two weeks’ pay in lieu of notice, and a record of employment. The owner didn’t offer an official reason for dismissal, but discussed Adriano’s lack of qualifications. Adriano mentioned that he needed to obtain a designation, but “only to update and add to my credentials and not because I lacked qualifications and experience.”
After the termination meeting, the owner followed Adriano to his workstation, watched him gather his belongings and say goodbye to co-workers, and escorted him to his car. He sued for wrongful dismissal, claiming common law reasonable notice of 13 months. He also claimed aggravated damages for the owner’s conduct after his termination, following and watching over him as he prepared to leave and then “rushing” him out of the building.
Adriano said he applied for more than 50 jobs over the next year and worked with a headhunting agency. He found two part-time positions, but didn’t find a full-time position until Dec. 2, 2019, earning the same base salary as he did with Kartners.
The court found that Adriano exaggerated his role with Kartners, noting that his previous jobs were “comparatively minor” and his qualifications along with Kartners’ eventual hiring of someone with certifications for the controller position as it grew indicated that the owner’s version of his duties was more accurate. Adriano was “a valued employee and contributor,” but also also “industrious and ambitious to a fault,” said the court.
The court considered Adriano’s age of 53 at the time of dismissal to be neutral, as there was no evidence it had a negative impact on his job search. As for the availability of comparable employment, although it took Adriano a year to find a similar full-time position, he wasn’t assigned the management roles or high degree of responsibility he claimed to have had with Kartners, so “comparable employment for him was not strictly limited to bookkeeping or administrative positions,” the court said.
The court also found that Adriano’s service time should include his initial part-time service, and so was five years. Based in this and the other factors, the court determined that Adriano was entitled to five months’ notice. This would include the bonus for 2018, as the notice period encompassed when that year’s bonus was awarded in December, but not 2019 as the bonus was only paid to active employees. The court found that Kartners had “a well-established and invariable practice of paying each active employee a bonus at the end of the year,” despite the owner’s claim that it wasn’t part of employee compensation.
Kartners was ordered to pay Adriano five months’ salary of $27,083.30 plus $4,500 for the 2018 bonus, minus his earnings from one part-time job he had worked during part of the notice period. The court denied Adriano’s claim for aggravated damages, finding that the owner was “respectful and appropriate” during the termination meeting and accompanying him as he prepared to leave was not in bad faith. It may have been “embarrassing and upsetting for Mr. Adriano,” but it wasn’t unduly insensitive, said the court.
For more information, see:
- Adriano v. 0886899 BC Ltd. (Kartners Bathroom Accessories), 2021 BCSC 166 (B.C. S.C.).
