'You don't want your recruiter to oversell the position': lawyer
The British Columbia Supreme Court has awarded a 12-month notice period to a worker who was wrongfully dismissed two-and-a-half years after being induced to leave a long-term position at his former employer.
“It's very common to use recruiters and it can be a great strategy,” says Trevor Thomas, co-founder and partner at Ascent Employment Law in Vancouver. “But you don’t want your recruiter to oversell the position - part of their role is to do a sales pitch, but that pitch can't be dishonest or they could be contributing to the inducement factor.”
“You want a recruiter to stick to the actual facts of the situation - obviously you want them to show opportunities in a positive light [to potential employees], but you don't want to make it seem better than it actually is,” adds Thomas.
The worker was a chemical engineer who started working for Catalyst at a pulp mill on Vancouver Island in 1992. He worked is way up from junior engineer to operations specialist for the bleach plant at the mill in 2004. In 2013, he assumed operations specialist duties for the other main component of the mill, the digester area. The position was the most senior non-management position in the pulp mill.
By 2018, the worker wasn’t happy at the mill as he felt overworked and underpaid. However, he felt his job was secure and he planned to retire in eight years at the age of 61, so he wasn’t looking for another job.
Contacted by recruiter
In January 2018, a recruiter for Mercer Celgar, another pulp producer, contacted the worker by email about an area manager position at the Celgar mill in Castlegar, BC. The recruiter said it was an “opportunity to lead a world class team and mill.”
The worker agreed to tour the Celgar mill and meet with senior management on Feb. 1. He met with the mill manager, production manager, and the manager of HR. They told the worker that the Celgar mill had a very good fibre supply that would keep it running, the benefits were better than at Catalyst, they paid overtime unlike Catalyst, and they were hiring for the long term.
Celgar also treated the worker and his wife to a dinner that night along with multiple nights at a hotel. The company reimbursed all the worker’s travel expenses. The worker also took a series of online aptitude tests at Celgar’s request.
On March 13, Celgar formally offered the worker a job, although the position wasn’t area manager but instead was that of operations specialist, the same job the worker had at Catalyst. The production manager told the worker that the initial job description was an error and they had intended to offer him the operations specialist position.
The worker declined the offer, as the base salary was similar what he was making in his secure position with many years of service at Catalyst – although he saw Celgar as a more attractive employer and he liked the Castlegar area. Celgar came back with a higher salary offer and the worker accepted. All agreed that they viewed it as a long-term hire.
Termination after two-and-a-half years
The worker started working for Celgar in April 2018 and the following year bought a property near Castlegar to build a house. In September 2019, he fell from the roof of the house and injured his back and neck. He was off work for several months, during which Celgar trained a younger employee to fill in as operations specialist.
The worker gradually returned to work in February 2020, reaching 100 per cent capacity by the summer.
During that summer, management received a corporate directive to cut the mill’s staff by a significant number in a downsizing initiative. Celgar created a list of about 20 people to potentially dismiss. Fifteen were dismissed on Sept. 22, including the worker. The company paid the worker eight weeks’ salary in lieu of notice, later making additional payments that brought the total up to five months’ salary.
The worker sued for wrongful dismissal, claiming a longer notice period entitlement because Celgar induced him to leave secure employment to join the company.
The court noted that courts have increased the notice period in wrongful dismissal cases where the employer induced the employee to “quit a secure, well-paying job… on the strength of promises of career advancement and greater responsibility, security and compensation with the new organization.” For there to be inducement, there must be “some evidence of a representation by the employer creating an expectation or reliance interest at the time the contract is made,” the court said.
Inducement by employer
The court found that Celgar recruited the worker when he wasn’t actively seeking alternative employment and, during the recruitment process, Celgar representatives made various statements highlighting the advantages of working for the company - including better benefits, paid overtime, and long-term job stability. These factors, combined with Celgar's offer of an increased salary, persuaded the worker to accept the position, despite his initial hesitation and a lack of “equal interest,” said the court.
The court found that the inducement was significant and extended the notice period beyond the five months provided by Celgar.
"Based on all the circumstances surrounding the creation of the employment contract, Celgar created an expectation on the part of [the worker] that the opportunity at Celgar was such that it would be advantageous to him to leave his secure long-standing employment," said the court.
Celgar’s inducement unfolded in two steps, starting with the recruiter and continuing with senior management, according to Thomas.
“The recruiter reached out directly to the worker and set the stage for what this opportunity could look like – it was doing what it was supposed to do, selling the idea of leaving current employment to join another company,” he says. “The second part of the inducement occurred when the worker met with company representatives - the idea of ‘wining and dining’ him and then telling him things like the benefits are going to be better and it was a long-term position.”
12-month notice period
In assessing the appropriate notice period, the court considered the established Bardal factors including the character of the worker’s employment – the most senior, non-management position at the mill - his age, his limited job prospects in the pulp mill industry, and the inducement to leave his previous role. The court determined that a 12-month notice period was appropriate.
Celgar's argument that the worker failed to mitigate his losses by not making sufficient efforts to find new employment was rejected by the court. While the court – and the worker himself - acknowledged that the worker’s job search – mainly reaching out to industry contacts via email to make general inquiries - was lacking in the first five months after his termination, it found no evidence that he missed any equivalent employment opportunities during that time.
“When it comes to mitigation, it's on the employer to prove that the employee failed to mitigate,” says Thomas. “[Celgar] was able to prove that the worker didn't take enough steps that he should have in the circumstances, but they also have to prove that there were opportunities out there that the employee should have applied to and would have likely been offered employment – [Celgar] wasn't able to show that there were actual opportunities that would have resulted in him finding new employment.”
Celgar was ordered to pay the worker 12 months’ pay in lieu of notice.
Celgar’s biggest misstep was that there was no termination clause in the worker’s employment contract, says Thomas.
“The right thing in that situation would be presenting the worker with an employment contract that had all the terms of his employment with a termination clause that limited the amount of severance that he would be entitled to upon termination,” he says. “Things happen in business – there are downturns and layoffs – and if [Celgar] had that termination clause, then it wouldn't be in a situation where they're going to court trying to figure out how much they owe - the termination clause would be very clear about what that amount would be, and it would surely be lower than what they ultimately ended up having to pay through the court process.”
“One of the key things to take away from this case is, as an employer, make sure that your contract contains a termination clause, because that's what will ultimately save you in the end,” says Thomas.
See Ferweda v. Mercer Celgar Limited Partnership, 2024 BCSC 844.
