An Alberta woman has been awarded 20 months’ notice after being terminated without cause during the pandemic, amounting to a more than $400,000 payment.
Jeannette Watson worked for Schlumberger Canada Limited (SCL) for more than 20 years. She was let go on Oct. 15, 2020. The company cited a sharp decrease in oil prices, the economic downturn in Alberta and the resulting effects of COVID-19 on the economy as the reasons.
Watson sued, seeking 21 to 23 months’ notice, plus out-of-pocket expenses she incurred as a result of her wrongful termination.
SCL countered that a more appropriate range was 15 to 20 months, but it also took the position that she had failed to mitigate her damages by looking for alternate work and the notice period should therefore be reduced.
When it terminated Watson, it paid her $32,171.21 which represented eights weeks’ pay in lieu of notice in accordance with Alberta’s Employment Standards Code.
Reasonable notice
The Court of King’s Bench of Alberta, using the Bardal factors, settled on a notice period of 20 months.
Character of employment: Watson had a bachelor of science degree in geology with a minor in physical geography from the University of British Columbia. She started in a technical role in 2000 but moved into more senior technical and team positions.
She was a high-level account manager who relied on her university education, technical knowledge, industry contacts and more. She had no direct reports and earned $273,075.38 in her last full year with SCL.
Length of service: SCL was her first and only significant employment after graduating from university. She worked for the company from Sept. 25, 2000, to Oct. 15, 2020.
Age of the employee: Watson was 43 when she was terminated. The court called that a “neutral” factor as she was not 45 at the time of termination, citing Law v. Canada (Minister of Employment and Immigration) and McKinney v. University of Guelph.
Availability of similar employment: The economy played a major role in her termination, with plunging oil prices and the pandemic. But economic conditions are just one aspect to consider, the court said. She moved from Alberta to British Columbia in September 2021, but was applying for jobs that could be performed remotely – both in Alberta and elsewhere.
Mitigation
SCL said Watson failed in her duty to mitigate because she declined a job as a client success manager with LinkPoint Technology Group in Kelowna, B.C. The offer included a base salary that was considerably less than SCL offered.
“I am of the view that the gap between her SCL base salary and the proposed LinkPoint base salary is such that it cannot be said that the LinkPoint position offered to Ms. Watson, with her particular background and expertise, paid a reasonable amount,” the court said. (The difference in salaries was not included in the ruling.)
It ruled SCL did not prove Watson failed in her duty to mitigate.
Damages
The court ran through a number of factors in determining the amount of damages.
Base salary: Her base salary in 2020 was $160,030. Watson took the position that her base salary would have increased during the notice period. Her last raise was in 2017, and the company said 2021 was a difficult financial year and there would not have been an increase.
The court ruled in favour of SCL that her base salary would not have been increased during the notice period.
Commission payments: Watson also claimed commission payments. SCL had a “complicated” commission structure for Watson, the court said, based on seniority, salary and revenue. Full reasons are in the ruling, but it settled on $58,891.68 for 2021 and $26,992.02 for the partial year of 2022.
Bonus: Watson also received a KPO bonus, based 80 per cent on SCL performance and 20 per cent on individual performance. The court awarded $25,604.80 for 2020; $16,003 for 2021; and $10,268.59 for 2022.
Group benefits: Her benefits were valued at $5,359.61 annually. The court used that number in awarding a total of $8,932.60.
Pension: The value of her pension was $13,270.46 annually. The court used that number in awarding $22,117.40.
Parking: Watson was entitled to a parking spot. SCL’s parking policy also provided the option for an employee to be paid the equivalent of the cost of parking of $385 per month. Watson used the spot while an employee and never took the cash value.
The court declined to award her damages for parking.
Stock purchase plan: SCL agreed Watson was entitled to a claim for this benefit, but there was a dispute over the value. The court took the average of the per-month value of the benefit from 2018 to 2020, which was $59.49. Over 20 months, the damages it awarded amounted to $1,189.80.
CPP contributions: Watson sought the CPP employer contribution during the notice period, except for 2020 as that had already been paid. The court awarded $4,739 to her for CPP contributions.
Vacation pay: Watson said she was entitled to seven weeks’ vacation per year. But the court declined to award damages, citing the notion of double compensation.
“There is no evidence that Ms. Watson could have worked through her vacation, which would have required permission in accordance with the Handbook, or that she would have been paid for vacation in addition to her base salary, commission, KPO bonus and other benefits. Indeed, there was no evidence that Ms. Watson ever intended to work through her vacation,” it said.
Other claims: The court shot down a claim for loss of use of her company laptop, which was returned upon termination.
It did award her $1,423.86 for loss of the use of her cellphone during the notice period.
All told, the damages awarded – less the $32,171.21 paid at termination – amounted to $410,708.15. The court also awarded costs to Watson.
For more information, see Watson v Schlumberger Canada Limited, 2022 ABKB 646 (CanLII)
