Employer, out of business and out of money, loses wrongful dismissal case to former worker

An Ontario worker has been awarded 13 months’ pay in lieu of notice against his former employer, which is no longer in business and did not participate in the court case.

Julian Ofori worked for BCG Logistics for 11 years, from May 2008 until he was laid off around Sept. 30, 2019. He started as a shipping/receiving clerk and worked his way up to warehouse manager. His annual salary was $60,000 per year plus benefits and a $1,300 bonus.

The principal of the company advised the court it was no longer operating and no funds are available to pay any damages.

“The defendant was noted in default and did not defend the action,” said Justice R.F. Goldstein of the Ontario Superior Court of Justice.

Ofori sought 15 months’ notice, $2,600 in bonus entitlements from 2019 and throughout the notice period and punitive/moral damages in the amount of $25,000 plus another $25,000 for violations of the Ontario Human Rights Code.

He abandoned his claims for punitive damages and human rights and sought only the wrongful dismissal amounts, including the bonus payments.

The court in this case reviewed the typical factors that judges look at when calculating what constitutes reasonable notice. They include:

  • character of the employment
  • length of service
  • age of the employee
  • availability of similar employment having regard to the experience, training and qualifications of the employer.

“There is no rule that clerical workers (and by extension I would find warehouse workers) are entitled to less notice than senior managers or specialized employees,” said Justice Goldstein.

The court said Ofori, 35, had demonstrated “real ability” by steadily rising through the ranks to a managerial position and was a long-term employee with 11 years’ service.

“Regrettably, (Ofori) has not been able to find a comparable position,” the court said. “I note, however, that he was laid off shortly before the world-wide Covid-19 pandemic had devastating economic consequences.  I would think that as the economy recovers, his prospects will improve.  That said, it may be some time before that happens.”

Editor’s note: To put that comment into timing context, the judgement was released on Aug. 4, 2022.

The court awarded him 13 months’ notice and a bonus of $1,249.95. Damages were calculated at 13 months’ or $65,000 plus the bonus amount, “less mitigation for that period.” The court asked counsel to recalculate the mitigation amount and convey it back for the final order.