Employee had right to refuse move from Vancouver to San Francisco

No express or implied term in employment contract that required employee to move: court

Wilson v. UBS Securities Canada Inc., 2005 CarswellBC 875, 2005 BCSC 563 (B.C. S.C.)

The British Columbia Supreme Court has awarded damages to a securities trader who refused to relocate when her employer moved from Vancouver to San Francisco.

Marcia Wilson worked for UBS Securities Canada Inc. Although almost three quarters of the Vancouver office’s revenue came from clients in the United States, being in Canada did not seem to impair the business. Revenue increased more than 1,300 per cent between 1991 to 2001.

When a decision was made to move the company to California, Wilson opted not to relocate. The court said there was no expressed or implied term in her employment contract requiring her to move.

Relocation was something negotiated on a case-by-case basis and for Wilson it had never been considered.

The necessity to relocate can be inferred if:

•having to move was discussed at the time of hiring, or subsequently during a performance review or planning procedure;

•the employee has accepted prior transfers;

•the employer faces compelling financial difficulties requiring relocation;

•the employer is attempting to accommodate a worker who no longer can perform at a level required by the position; or

•it can be reasonably expected that transfer is a fact of life, as in when an engineering project at a specific location has finished.

None of these was the case here. The court awarded Wilson one year’s income in lieu of notice. The court set that amount at $870,000, covering a base salary, a discretionary bonus and income earned from ownership shares in the company.

A dispute arose over the date from which the notice period should run. In September 2003 UBS told employees it was considering relocating. If visa, licensing and immigration issues could be resolved they’d all be expected to relocate, they were told. On Oct. 14, Wilson told her boss she would not be relocating.

On Dec. 15 UBS advised all its employees a decision had been made to move but that no fixed date had been set. On Jan. 19, 2004, it was announced the Vancouver office would be closed on Jan. 31, 2004.

UBS argued the effective notice date was Oct. 14 when Wilson told the company she’d not be moving. The court disagreed. No certain date for closure had been set by Oct. 14 — there were still a number of critical administrative moves that needed to be resolved and a final decision had not been taken, it found.

The court also ruled Wilson’s final damages should take into account that she would probably have taken maternity leave in the year of the notice period.

Years before she’d taken advantage of the company’s maternity policy, which had reduced her income for a 12-month period. Wilson was pregnant when she was dismissed (a fact not then known by the company) and UBS argued she would have taken maternity leave again. The court agreed, and Wilson’s award was reduced accordingly. She ultimately received $649,135 subject to three other small calculations.

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