Alberta Employment Law Update Spring 2012
Davis LLP Employment & Labour Bulletin
May 3, 2012
IN THIS ISSUE
Gillespie v. 1200333 Alberta Ltd.
Alberta Queen's Bench, 2012
In a 2011 Provincial Court decision, Justice Skitsko stated that it is settled law that an employer can rely on after-acquired knowledge that just cause existed at the time of dismissal, and also accepted that the removal of confidential client information which remained offsite with Gillespie for several months would prejudice the Company’s business. He further held that the non-disclosure agreement and its wording negated Gillespie’s argument that she could not be bound by the provisions as the actions occurred after termination, because such an interpretation would render the agreement meaningless.
Justice Skitsko dismissed Gillespie’s claim, finding that the two weeks pay in lieu of notice was reasonable. In reaching this finding Skitzko J. applied the criteria established in Bardal v Globe and Mail Limited,(1960) 24 D.L.R. (2d) 140: the nature of employment, length of service, age of employee, and availability of similar employment in the circumstances, such as the economy. The Trial Judge also noted as a “salient factor” that the after-acquired knowledge gave the Company just cause for dismissal.
The issues on appeal were whether the Trial Judge erred in law, fact, or mixed law and fact in concluding:
Sufficient grounds for termination for cause
Both Gillespie and the Company agreed that the Trial Judge failed to draw the distinction between after-acquired knowledge and post-termination conduct, or “subsequent event evidence”. Madam Justice Ross of the Alberta Court of Queen’s Bench noted that subsequent event evidence can be relied on when it sheds light on the reasonableness of dismissal for cause at the time of the dismissal, or when it reveals an undesirable aspect of the employee’s character that would in itself justify the dismissal.
Justice Ross noted that “the finding of a breach of contract cannot be equated with a finding of a character flaw that would justify dismissal, especially in view of the Trial Judge’s earlier finding that the Appellant was stunned and devastated when she removed the documents from the office [para 26].” Ross. J rejected the Trial Judge’s finding that a post-termination breach of the non-disclosure agreement would render such an agreement meaningless, as such breaches could be enforced through proceedings that would not “involve the illogic and unfairness of permitting an employer to retroactively justify its repudiation of an employment contract by an employee’s post-repudiation breach [para 31],” such as professional disciplinary proceedings or proceedings under privacy legislation.
Reasonable pay in lieu of notice
Justice Ross held that whether a termination was or was not for cause is not a criteria of the Bardal test, and therefore the Trial Judge’s reliance on this as a “salient factor” was an error in law. In light of this error, it was the responsibility of the Court of Queen’s Bench to determine the appropriate notice period.
1. At the time of termination Gillespie was 52 years old;
2. Gillespie was a highly trained Occupational Therapist with particular training in mental health and psychiatry;
3. Gillespie was in a position of responsibility and authority;
4. She earned $83,600 (plus benefits) at the time of her dismissal; and
5. Despite mitigation, she was unable to find a comparable position for approximately two-and-a-half years.
Upon review of these factors, and noting jurisprudence on analogous facts, Justice Ross assessed reasonable notice at a period of four months. In coming to this conclusion she rejected the Company’s argument that Gillespie was only entitled to the amounts prescribed by the Alberta Employment Standards Code, R.S.A. 2000, c. E-9 (the “Code”), stating that mere reference in an employment agreement to adhering to the guidelines of the Code does not mean that the employee is only entitled to the minimum requirements therein. Justice Ross noted that any agreements to exclude an employee’s common law protections and limit an employee’s notice to the minimums provided in the Code must be clear and unambiguous.
Evans v. The Sports Corporation
Court of Queen’s Bench of Alberta, 2011
Ahmad v. Athabasca Tribal Council Ltd.
Alberta Court of Appeal, 2010
(The Supreme Court of Canada denied leave to appeal in April 2011).