This instalment of You Make the Call involves a dispute over working notice of dismissal.
Bertram Thambapillai, 73, was a security guard for Labrash Security Services, a security systems provider in Toronto. He was hired to be a security guard at a packaging plant in 2000, and when Labrash took over responsibility for the facility’s security in 2003, Thambapillai’s employment was transferred to Labrash.
On Nov. 24, 2014, the principal of Labrash gave Thambapillai a letter stating that the company who ran the facility no longer required Labrash’s services. As a result, Thambapillai’s employment would end in January or February 2015. The letter also stated that since employers were required to give termination notice to employees, Labrash would advise Thambapillai as soon as it was given a firm date by the facility owner.
However, Thambapillai continued working through February and over the next few months. Other Labrash employees were relocated during this time and Thambapillai thought this might happen to him as well, though no one told him as much.
Labrash’s manager occasionally reminded Thambapillai that his employment would end and he should look for other employment, but no one provided a definite date of termination.
On July 24, 2015, Labrash’s principal told Thambapillai that his employment was terminated effective immediately and gave him a record of employment.
Thambapillai filed a complaint, saying he wasn’t given proper notice of termination. He said the original letter providing notice wasn’t sufficient and he deserved more notice before his actual termination. He claimed $60,000 for breach of contract, $15,000 in damages for mental suffering from Labrash’s conduct in the way he was terminated, and $15,000 in special damages. Thambapillai did find new employment in April 2016 that mitigated his damages, and eventually reduced his claim to $17,000 for 37 weeks of lost income after his dismissal and $7,500 damages for mental distress.
Labrash argued that Thambapillai was given plenty of notice of his termination, as he was notified nine months before his actual termination that he would be dismissed and reminded on a regular basis that he should be looking for work. A reasonable person would have understood that his employment would come to an end at some date in the future, the company said.
You Make the Call
Was Thambapillai entitled to more notice of dismissal?
OR
Was Thambapillai given sufficient working notice of dismissal?
If you said Thambapillai was entitled to more notice of dismissal, you’re correct. The court found that while Labrash notified Thambapillai that his employment was going to end, it never gave him a definite date. Thambapillai was originally told his employment would end in January or February 2015, but it did not. When it actually ended several months later, it was beyond the 13-week period of notice required by employment standards legislation. Once Thambapillai continued working past this point, he was entitled to fresh notice, the court said.
The court also found that the letter Labrash provided in November 2014 wasn’t sufficient notice as it didn’t provide Thambapillai with a definite termination date. The company’s reminders over the next few months also didn’t provide a date. Without a definite date, there was no proper notice, said the court in disagreeing with Labrash’s assertion that a reasonable person would understand he was being terminated.
The court noted that the decision to keep the facility open longer was a business decision made that Thambapillai wasn’t privy to, and someone in his position couldn’t be expected to guess how such decisions played out and would affect his employment status.
“A notice of termination must be clear and unambiguous,” said the court. “The combination of oral reminders and the letter were simply insufficient when all the circumstances — including the fact that (Thambapillai’s) employment continued and other employees were transferred to other locations — are considered.”
The court determined Thambapillai’s claim for 37 weeks of lost pay was fair and Labrash acted unfairly in his termination, warranting the addition damages claimed for mental distress. Labrash was ordered to pay $24,576 in total damages.
For more information see:
• Thambapillai v. Labrash Security Services Ltd., 2016 CarswellOnt 15985 (Ont. S.C.J.).
