TV station manager resists cancellation

Manager’s job function was transferred and he claimed constructive dismissal after given ‘make-work’ duties until retirement

A television station constructively dismissed a long-time employee when it changed his role after he insisted on working up until his retirement date rather than be laid off, the British Columbia Supreme Court has ruled.

Stuart Johnson, 67, worked for 39 years for CH Vancouver Island, a Victoria station owned by the Global Television Network and its predecessor. He worked in various positions in on-air production throughout his career and was the manager of on-air operations from December 1998 until December 2004. In this position, he supervised a dozen unionized employees, administered an annual budget and oversaw on-air operations for Global.

In 1974, Johnson joined a retirement plan through an insurance provider. The plan stated his normal retirement date would be the first day of the month following his 65th birthday. It also said he could remain employed beyond that date, on a year-to-year basis, with the consent of his employer up to his 71st birthday. Johnson received an annual statement of pension benefits indicating his normal retirement date of August 2005 (he turned 65 in July 2005) and his pension payable at age 65. In 2002 a booklet about the Global retirement plan was circulated to employees, which reiterated the normal retirement date for employees was the first of the month following their 65th birthday and mentioned the policy for a postponed retirement date up to 69.

In 1997, Global made some changes at the station and told Johnson he was being laid off. He was offered 24 months’ severance as part of a buyout package. An agreement was reached in November 1997 but Johnson was asked to stay on until the spring of 1998.

However, Johnson worked hard during a 1998 strike and impressed Global enough that it wanted to keep him on staff. Global rescinded the layoff and the president of B.C. operations conveyed a message to Johnson saying he had a job “as long as he wants it.” In 2004, Global decided to transfer master control functions to Calgary, which made Johnson’s job obsolete. He was told his position would no longer exist as of Nov. 27, 2004. The network said it would continue to pay him his salary and benefits from that date until his normal retirement date of Aug. 1, 2005.

According to Global, Johnson seemed happy with the arrangement. However, Johnson claimed he was “stunned” at the news of the transfer and he wouldn’t have a job anymore. He interpreted the arrangement as essentially a severance of eight months. This angered him because he knew the unionized employees he worked with were getting nearly two years’ notice as part of their severance.

Johnson told Global he felt his own severance was inadequate considering his years of good work and it shouldn’t be assumed he wanted to retire at 65, since he had never been told it was a mandatory requirement.
Global responded by offering to keep him working up to his normal retirement date. Though his old duties wouldn’t exist in Victoria, he would be “kept busy on several different projects.” Johnson asked for clarification but Global didn’t specify.

Johnson met with management on Oct. 6, 2005, when he claimed the vice-president of business operations for Global made “denigrating, unwarranted and unduly insensitive comments” to him, including glib remarks about what Johnson’s duties would be.

At another meeting on Dec. 2, Johnson was told it had been decided Victoria would be a backup to the master control in Calgary and Johnson would be ensuring things were ready to go. This would require operating equipment and keeping commercial inventory, things which he had never done before. He would also be reviewing and approving timesheets of two other departments, which the managers of those departments normally did but would give up for the eight months until his retirement. Johnson claimed this was a fundamental breach of his employment contract and constituted constructive dismissal. He also claimed Wallace damages for the way he was treated by upper management, specifically at the Oct. 6 meeting which left him angry and offended.

The court agreed with Johnson’s argument there was no mandatory retirement at 65. There was only reference to the “normal” retirement date with provisions for working beyond 65.

“(Mandatory retirement) was never an express term of any employment contract between (Johnson and the station),” the court said. “Given the evidence with regard to company documents that referred to early and/or postponed retirement, it cannot be said that mandatory retirement was an implied term in the employment contract.”

The court also found the duties Global offered Johnson after Nov. 27 were fundamentally different from his position as the manager of on-air operations. His new work would involved hands-on and “union work” after nearly 40 years of management.

“The duties listed were clearly make-work duties from two other departments, designed to give a deceptive patina shine of management to the offer of continued employment. All of which involved fundamental changes to the terms and conditions of the employment contract and amounted to constructive dismissal,” the court said.

The court felt the series of events damaged the employment relationship enough that he couldn’t be expected to continue working at the station, particularly performing duties that weren’t management duties.

The court felt Johnson was entitled to an award near the upper end of the scale because of his “increased age, decades of service, the character and scope of his management employment functions and the lack of availability of alternative employment.” It awarded him 24 months’ notice.

The court found though the comments made to Johnson at the Oct. 6 meeting were insensitive and were perceived as insulting because of Johnson’s vulnerability at the time, they were not intended as such. As a result, the court found Johnson was not entitled to extra Wallace damages.

For more information see:

Johnson v. Global Television Network Inc., 2007 CarswellBC 1900 (B.C. S.C.).

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