'Even when bringing hard news, it's better to be direct than avoid it,' says lawyer looking at recent Quebec case
“Transparency is the best avenue for employers - even when bringing hard news, it’s better to be direct than avoid it.”
So says Patrick Essiminy, Head of the Employment and Labour Group in the Montreal office of Stikeman Elliott, after the Quebec Superior Court dismissed a worker’s allegation that his cancer was a factor in his dismissal and awarded nominal wrongful dismissal and aggravated damages.
“If employer decides to show empathy and go above and beyond its legal obligations, it won’t go unnoticed by courts,” says Essiminy.
The worker was hired in 2016 by Lafarge Canada, a concrete and cement building materials supplier headquartered in Mississauga, Ont., with locations across Canada. The company’s mobile and mining group (MMG) produced and delivered concrete for large construction projects such as mines and dams in remote areas. The worker’s position was territory sales manager in the MMG for Quebec and the maritime provinces.
At the time of his hiring, the worker was 59 years old and had more than 25 years of experience in sales, but he was working as a truck driver.
The worker’s duties involved contacting engineering procurement companies, municipalities, government agencies, and project owners for opportunities for Lafarge in construction projects. Such negotiations could take months or years.
The worker only identified one promising opportunity in his territory in 2019, but it didn’t pan out for Lafarge. By 2019, the vice-president of the mobile and mining group determined that the group wasn’t profitable and there were no projects in the worker’s territory. As a result, the company decided that there was no reason to keep the territory sales manager position.
Medical condition
In the spring of 2019, the worker informed the company that he had cancer. Lafarge offered him the option of being assigned to light duties with his full pay or go on short-term disability (STD) with insurance benefits. The worker chose light duties because he was able to do most of his tasks, with restrictions on travel and heavy lifting.
Around the same time, management agreed to abolish the worker’s position, but it didn’t happen at that time because the worker’s manager was in the process of being promoted and they didn’t want to terminate the worker while he was suffering from serious health issues.
In early 2020, the worker personally attended Lafarge’s annual meeting and discussed his health condition with his new manager, including surgery for which he was waiting. After the meeting, the manager realized that there were no foreseeable projects for the worker’s territory and discussed with upper management the prospect of eliminating the worker’s position. They decided again to delay the move due to the worker’s health issues.
However, in April 2020, Lafarge decided to temporarily lay off hundreds of employees due to the pandemic, including the worker. He was allowed to take his accumulated vacation time, so his layoff date was April 27.
Shortly before his layoff, the worker asked to go on STD benefits, so Lafarge suspended his layoff until he applied to the insurance provider. The provider denied the STD application and the worker was temporarily laid off on May 24.
Deferred termination
Management decided to continue to defer the worker’s termination for six months, which was the maximum time allowed under Quebec law for a temporary layoff.
In August, the worker learned that his cancer was in remission and he was able to return to work full-time as of Sept. 29. He informed Lafarge and management decided to proceed with the elimination of his position. However, for administrative reasons the worker had to be technically recalled from his temporary layoff before he could be terminated.
On Nov. 20, the worker received a letter indicating that he was being recalled to work. On the same day, he was invited to a virtual meeting for Nov. 24.
At the virtual meeting, the worker was informed that his position was being eliminated for business reasons and his employment was terminated. He was offered either salary and benefits continuance for five months or a lump-sum amount equal to five months’ pay and benefits.
The worker didn’t choose an option, so the company continued to pay his base salary, health benefits, and retirement contributions for five months.
Wrongful dismissal
In April 2022, the worker filed a wrongful dismissal application claiming 24 months’ pay in lieu of notice, $50,000 in moral damages for the way his termination was conducted – he said he celebrated that he was going back to work after the recall letter and then was shocked and upset when he was terminated - and $50,000 in punitive damages for a violation of his charter rights because his health was the real reason for his termination. He later changed his notice demand to 18 months.
Lafarge argued that the worker was entitled to five months’ notice, pointing out that he had found a job as a truck driver four months after his termination.
The court found no evidence that Lafarge made any promises of long-term employment or that the pandemic affected his prospects for new employment. In addition, since the worker’s cancer was in remission, his health didn’t negatively affect his job search, the court said.
The court determined that the worker was entitled to seven months' notice. Since Lafarge had already provided five months’ salary and benefits, an additional payment of $1,356 was left after the worker’s income from his new job during the notice period was subtracted, said the court.
The court also found that some moral damages were in order, but only $3,000. Lafarge's decision to send a letter and email stating that the worker had been recalled to work, only to inform him days later that his employment was being terminated, was misleading and deviated from the standard of a prudent and diligent employer, said the court.
However, the worker didn’t indicate that he was depressed or needed medical treatment for his mental state after the termination, the court added.
Transparency important
Lafarge received credit for showing empathy and accommodation by delaying its decision to terminate the worker because of his serious illness, but it got into trouble by lacking transparency, according to Essiminy.
“Sometimes transparency is the best approach rather than being so subtle that you get into trouble,” he says. “Instead of being transparent and candid about the decision to terminate, Larfarge recalled the worker and then announced his termination at a meeting, which led to a roller coaster of emotions - I always tell my clients, when you have a meeting, don’t lie or mislead about the purpose.”
The court denied the worker’s claims for punitive damages and alleged abuse of process, as there was no violation of his rights under the Charter of Human Rights and Freedoms or bad faith on Lafarge’s part. The company provided sufficient evidence from management communications and testimony that the termination wasn’t related to the worker’s medical condition and that it was considering eliminating the worker’s position for business reasons before the worker revealed his health issues.
In fact, the worker’s health issues actually delayed the decision to eliminate his position, the court said, noting that the worker’s position hadn’t been replaced and the MMG was eventually phased out.
“Any prohibited ground of discrimination or reprisal can’t be a shield from something that would occur in the ordinary course of business,” says Essiminy.
“[Lafarge] went above and beyond what it would normally be expected to do - the worker wasn’t realizing his objectives and normal business considerations would have allowed the employer to proceed with his termination regardless of his illness, but instead it offered to keep him employed because it was a better deal for him receiving 100 per cent of his pay.”
“It was clear from the whole of the business evidence that the worker’s territory wasn’t successful and his termination wasn’t connected at all to his medical condition,” he adds.
Nominal aggravated damages, notice indemnity
Lafarge was ordered to pay the worker $4,356.53, along with interest and special indemnity from the date of his demand letter on February 24, 2021.
Given the small damage award the worker ended up getting, it had to be disappointing to the worker, but it’s also a wake-up call for both sides when it comes to advancing litigation, says Essiminy.
“Being engaged in unnecessary litigation and trying to advance theories and presumptions of fact that don’t co-ordinate with reality can be risky and expensive – it’s ultimately a loss of time and resources,” he says. “Law in Canada isn’t a lottery, it has to be the fruit of substantive analysis of the risks and benefits of going through litigation, especially in a civil process.”
