The plaintiff in Wilson v. Pomerleau Inc., 2021 BCSC 388 was employed by the defendant construction company as chief estimator for the BC region. In his role as chief estimator, the plaintiff supervised a team of 2-6 individuals. He had a base salary of approx. $174,000 and participated in an annual profit sharing program that amounted to 5% of his pay. In March 2020, the a plaintiff was terminated without cause and without reasonable notice. He was 65 years old at the time of termination and had worked for the defendant for 10 years. He had a total of 40 years of work experience in the construction industry as an estimator.
The parties agreed that the plaintiff had not been given adequate notice, and therefore the Court considered the following issues:
- what was a reasonable notice period in these circumstances?; and
- did the plaintiff fail to mitigate his loss and if so, to what degree?
The Court found that the plaintiff’s age was a significant barrier to him finding alternate employment, and also noted that he was a more senior employee with supervisory duties. The Court found that these factors supported a larger award, and held that a reasonable notice period in these circumstances was 18 months.
However, the Court also held that the plaintiff had only made meagre efforts, and failed to pursue a broader range of opportunities, noting that he had only applied for one job since his termination. The Court found that the plaintiff had unnecessarily limited his job search to positions that were more or less identical to his former position with the defendant, despite the fact that his skills and experience would qualify him for a much broader range of jobs. As a result, the Court reduced the notice period by 1-month to account for his failure to mitigate. The Court further then reduced the period by another month to account for what it found was a reasonable chance of the plaintiff obtaining employment in the remaining notice period. The Court found that such a position might not provide the plaintiff the same level of compensation that he received from the defendant, but that it would nonetheless reduce his loss over the notice period.
After taking the deductions into account, the plaintiff was thus awarded 16 months of pay in lieu of notice, which was calculated based on his annual salary and profit sharing entitlement.
Implications for Employers
This decision underscores how older employees with supervisory duties are entitled to longer notice periods at common law. Employers can only reduce an employee’s notice entitlement to a lesser amount by including a valid termination clause in the employee’s contract which clearly rebuts their entitlement to reasonable notice at common law. The decision also highlights how employees must make serious efforts to find alternate employment during the notice period, and that a court may ultimately reduce the notice period if they fail to do so.