B.C. pressman loses bid to have termination clause voided because cap was shorter than mandated for ‘group’ layoffs under ESA

A press operator. Photo: Antoni Shkraba

A senior pressman at Glenmore Printing in Richmond, B.C., was laid off during the pandemic — a move that both the worker and employer agreed was constructive dismissal.

But the two sides were at loggerheads over the termination provision in his contract, which capped his notice at eight weeks’ maximum.

The worker argued the provision should be declared null because the cap was less than mandated under provincial employment standards legislation for a “group termination” — even though he wasn’t laid off as part of a group.

Employment contract’s termination provision

Ross Forbes was laid off on Dec. 16, 2020, by Glenmore following a downturn in business related to the COVID-19 pandemic.

Forbes’ employment contract had a termination clause, which Glenmore said limited the notice period. The clause stated that the company could terminate employment by giving the worker:

(a)  After the first three months of continuous employment, one week’s notice or wages,

(b)  After the first year of continuous employment, two weeks’ notice or wages, and

(c)   After three consecutive years of employment three weeks’ notice or wages, plus one additional week’s notice or wages for each additional year of employment to a maximum of eight weeks’ notice or wages.

Given that Forbes had been on the job for more than six years, it discharged its liability by paying him six weeks’ pay in accordance with the clause, it argued.

Worker disagrees

Forbes, though, said the termination clause was not enforceable because it provided less pay than the minimum requirements of the group termination provisions of B.C.’s employment standards legislation.

Although Forbes was not part of a “group dismissal,” he argued that the possible contravention of the minimum requirement of the ESA rendered it void.

Interestingly, both sides agreed that — if the clause were void — the common law notice period would be eight months. Though the employer did argue that, in that situation, Forbes also failed to mitigate his damages by searching for another job.

The court’s ruling

The court ruled the termination provisions did not breach the Employment Standards Act (ESA). The clause, including the provision capping notice to eight weeks, mirrors the entitlement under s. 63 of the act, the court said.

It concluded Glenmore was capping notice on an individual termination, and nothing more.

“I do not accept Mr. Forbes’ argument that the Termination Clause does any more than that,” it said.

There was no express provision waiving the employer’s obligation to comply with the ESA’s rules under s. 64 on a group termination. It was “silent” on that, and nothing more, it ruled.

Therefore, the company met its obligations under Forbes’ employment contract when it paid him six weeks’ notice. Given that, there was no point in analyzing whether he failed to mitigate his duties.

It awarded costs to Glenmore at Scale B.

For more information, see Forbes v Glenmore Printing Ltd., 2023 BCSC 25 (CanLII)