Another Alberta wrongful dismissal case will be of interest to employment law and HR geeks seeking to hone their internal reasonable notice gauges. This post summarizes the Bardal Factors, confirms the reasonable notice period, and sets out some points of interest from the judgment in Hickaway v Riddell Kurczaba Architecture Engineering Interior Design Ltd.
- Plaintiff’s Age: 54
- Length of Service: ~ 3 years, 3 months
- Occupation: architectural technician / production manager
- Notice period: 7 months
The plaintiff was an architectural technician. He was initially hired into the position of Senior Architectural Technologist/Job Captain in August 2005 and promoted to Production Manager in 2006. He was dismissed in November 2008. He was dismissed without allegations of cause, but on suing for wrongful dismissal the company raised cause in its defence and brought a counterclaim alleging misuse of confidential and client information, in breach of a non-competition clause.
The plaintiff earned $7,000/month.
A. Notice Period
- The Court noted that the plaintiff had a “very busy and responsible position” (para 47). He generated a lot of income for the employer through his extensive work hours. He was highly qualified and technically sound, although he suffered in some aspects of his paperwork (para 47).
- The Court pointed out multiple times that the plaintiff was dismissed in a weak economy. It took the plaintiff “some time” to find a new job because of the economy, despite his “valiant efforts” in that regard (para 47; also paras 17, 41). Conversely, the Court noted that there was no evidence that the employer was under any financial distress – “they continue as a viable entity” (para 47).
- The plaintiff was awarded overtime that would have been earned over the notice period (paras 49, 50).
- Bonus for 2008 was awarded despite that it was discretionary, as other employees received it (para 51).
B. Cause Defence and Counterclaim
- The allegations of cause fell “well short” of showing the plaintiff was willfully disobeying his employer or being insubordinate (para 27). The defence was rejected.
- There was insufficient evidence to prove the counterclaim, and in any event the employer failed to prove damages flowed from the alleged breaches of duty (paras 64-67). The counterclaim was dismissed.
- The plaintiff sought Wallace damages for the failed just cause defence, but the Court found that the allegations did not amount to conduct at the time of dismissal and therefore were not compensable in damages. They did not arise out of the dismissal. However, the Court opined that these were “more amenable [to] compensation when it comes to awarding costs in this action” (para 60). Unfortunately, the reasons do not confirm the quantum of costs. However, a subsequent reported decision shows costs were awarded on Column 3 of Schedule C, whereas absent the failed cause defence and counterclaim Column 2 would have been appropriate (see 2019 ABQB 874).
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Matthew Tomm Law provides legal services in Calgary, Alberta, focusing on employment law and civil litigation.