Reasonable notice of dismissal should reflect New Brunswick worker's full term of service, not just time spent working full-time: court
It’s not uncommon for a worker to join a company on a part-time basis before moving to a full-time position. But should that period of part-time work be treated differently when determining that worker’s notice of termination? Not according to a New Brunswick court that recently determined a worker’s service time for the purposes of calculating the reasonable notice period should include the worker’s entire unbroken period of employment that started with a few years of part-time work before progressing to more than a decade of full-time work.
Woodstock First Nation Economic Development Corporation (WFNEDC) operates a casino called the Eagle’s Nest Gaming Palace on the Woodstock First Nation in New Brunswick. It hired Kathy Slipp, 58, in July 2001 to be a part-time bingo caller at the Eagle’s Nest bingo hall. Five years later, Slipp added office assistant and cashier duties to her job and started working full-time.
On May 9, 2018, WFNEDC terminated Slipp’s employment without cause. It provided her four weeks’ pay in lieu of notice — the minimum amount required by the Employment Standards Act of New Brunswick —plus vacation pay and outstanding pay at the time of her termination.
Worker refused to sign release for additional package
WFNEDC also offered Slipp a package that included an additional $20,000 severance pay and coverage in its medical plan for another three and one-half months, until Aug. 31, if she signed a release of claims against WFNEDC. Slipp refused to sign the release and she was left with the legislative minimum termination payment.
Following her termination, Slipp worked for a credit union but was let go after less than one week, apparently because some business customers threatened to pull their business. About one year after her termination from the casino, she found part-time work at a Walmart store. The Walmart job started off with 20 to 37 hours per week but settled in at 12 hours per week in July.
Slipp was hired for a full-time job at another company in September 2019 and continued working weekends at Walmart for about one month before quitting that job.
Slipp filed a claim for wrongful dismissal against WFNEDC, claiming damages for common law notice reflecting her 17 years of service at the casino, her relatively advanced age and the nearly 16 months it took her to find a regular, full-time job. She argued reasonable notice of 12 to 18 months was appropriate.
WFNEDC refuted the claim, arguing the five years Slipp worked part-time should be subtracted from her service time and only the 12 years she worked full-time should be considered for determining reasonable notice. It also pointed out that similar employment was available since Slipp found three different jobs fairly quickly during her claimed notice period, so she failed to properly mitigate her damages.
The court noted that “the primary objective of reasonable notice is to provide the terminated employee with a reasonable opportunity to seek and find alternative suitable employment” and wrongful dismissal damages “are designed to place the aggrieved party in the same position he/she would have been in had the contract been performed, i.e., had the employee been able to work the notice period.” The court added that the reasonableness of the notice is affected not just by the length of service and age of the employee but also the character of the employment and the availability of similar employment with the worker’s experience and qualifications.
The court also noted that a dismissed employee such as Slipp was obligated to “make reasonable efforts to mitigate his/her damages by reasonably seeking alternative employment or sources of income.”
Full term of employment factored in
The court initially addressed WFNEDC’s assertion that the first five years of Slipp’s employment that was part-time shouldn’t be included in her service time and disagreed. When part-time employment is factored into a reasonable notice calculation, it is usually related to the character of the employment, the amount of the employee’s earnings or other factors unique to the situation — not as a way to reduce the amount of time the employee is considered to have worked for the employer, particularly when the majority of the service was in full-time employment, as in Slipp’s case, the court said.
“The fact that an employee has worked part-time for a portion of their career with an employer need not always be treated as to reduce any determination of the reasonable notice period,” said the court.
The court found that Slipp made reasonable efforts to mitigate her damages, as she was clearly looking for work given that she found jobs, although the first one was short-lived and the second one was part-time. The fact that the first two jobs didn’t approach the nature and earnings of her casino position emphasized that it wasn’t necessarily easy for someone of Slipp’s age, experience and qualifications to find similar employment.
However, the court felt it wasn’t necessary to extend the notice period all the way to the date Slipp found full-time comparable employment in September 2019, 16 months after her termination by WFNEDC. The circumstances existing at the time of termination in May 2018 should apply, rather than the time she finally found comparable employment in September 2019, the court said.
The court determined that Slipp was entitled to a reasonable notice period of 14 months. As a result, WFNEDC was ordered to pay her damages equivalent to 14 months’ pay, reduced by the statutory pay already paid to her at her termination. As for possible deductions for the part-time employment at Walmart Slipp had for the last two months of the notice period, the court indicted it would hold an additional hearing to address the issue of mitigation and costs, unless WFNEDC and Slipp reached a resolution on their own.
For more information, see:
- Slipp v. Woodstock First Nation Economic Development Corporation, 2020 NBQB 20 (N.B. Q.B.).
