Secret recording made by fired Ontario resort GM highlighted ‘disturbing aspects’ of termination: Court

A golf ball sitting on the edge of cup.

The general manager of an Ontario golf course and resort has been awarded seven months’ notice after serving slightly more than three years in his role.

The Ontario Superior Court of Justice tacked on $15,000 in moral damages for the way the employer handled the without cause termination, citing a secret recording of the meeting the employee made that highlighted what it called “a number of disturbing aspects” about the termination.

Background

John Teljeur was hired as the general manager of the Pinestone Resort & Conference Centre, a golf course and full-service resort in Haliburton, Ont.

On Dec. 6, 2021, Teljeur was terminated without cause after the owners decided to retain an outside management company to manage the resort.

Teljeur was initially hired as general manager from May 2015 to September 2016. According to the resort, his employment ended on that date. He was rehired as general manager from Oct. 1, 2018, to Dec. 10, 2021, it said.

Interestingly, Pinestone Resort said Teljeur signed a contract for this period of time — but it was unable to locate the agreement and said it would not rely on it to limit his severance entitlement.

The Ontario Superior Court of Justice said there was no evidence to suggest Teljeur’s seniority from 2015-2016 was granted to him, so it considered his employment period to be October 2018 to December 2021, or about three years.

Teljeur’s role

Teljeur was 56 at the time of dismissal. As general manager, he was responsible for all operations at the resort — he met with the departments daily to ensure staff were prepared and had the proper resources and supplies. His income was $72,500 per year.

He hired and managed what he called a “very good team” and was also in charge of scheduling and handling staff issues. He also managed the resort’s marketing efforts and its social media accounts.

The court concluded he was a senior manager within the corporation.

Notice period

Teljeur sought 10 months’ notice, citing the case of Pavlov v. The New Zealand and Austrialian Land Company Limited. In that case, the director of marketing and communications — who had been with the company for three years — was awarded 10 months’ notice.

Pinestone Resort countered that a more appropriate notice period was three-and-a-half to five months, relying primarily on his short service period.

But the court noted that length of service is just one of the Bardal factors to be considered. Character of employment, age and availability of similar employment are also to be taken into account.

Teljeur was 56 and held a senior management role. The court said the closest case it could find to the present circumstances was Merida Lake v. La Presse (2018) Inc. In that case, the worker was a GM who held her position for five-and-a-half years. She was the most senior employee in Toronto, and was terminated when Montreal-based La Presse newspaper closed its Toronto office. Lake was awarded eight months’ notice.

Teljeur is older than Lake was at the time of her termination, but his employment period was shorter, the court noted.

It settled on seven months as an appropriate notice period.

Claim for lost benefits

Teljeur participated in the company’s “comprehensive benefits plan.” No details or costs of the plan were outlined to the court.

Citing Russell v. The Brick Warehouse LP, the court awarded 10 per cent of wages for “the time period that benefits were not provided by the employer during the period of reasonable notice.”

Mitigation

Pinestone Resort argued the seven-month notice period should be reduced because of Teljeur’s failure to make reasonable efforts to find another job.

It noted that he updated his resume in December 2021, and updated his accounts with Indeed, Zip Recruiter and LinkedIn.

“The scope of (his) job search efforts has been Indeed, Zip Recruiter, another resort named Red Umbrella that he learned of from a personal contact and a company he applied to as a result of a friend’s referral,” the defence factum said. “(Teljeur) spends “a couple of minutes in the morning” and “five to ten minutes” searching for a job through Indeed unless there is an alert.”

It also noted that his job search was made more difficult because he made a number of social media posts complaining about the resort, and its operators, on Facebook. It said he did not maintain a job search chart, nor did he follow up an opportunity they provided to held them locate properties to purchase. (Teljeur held a real estate license at the time.)

The court didn’t bite on any of the employer’s mitigation arguments.

“There is no evidence before me which would allow me to conclude that had the plaintiff made better efforts to secure alternate employment he could have done so during the period of reasonable notice,” the court said.

The real estate offer was related to the fact that if the defendants sold the resort, they might have the money to purchase another property and Teljeur was “being invited in that scenario to provide them with assistance in finding another property to purchase.”

But there was no evidence the property was ever put up for sale, or that it was ever sold, the court said.

Moral damages and the secret recording

Teljeur sought $20,000 in moral damages for bad faith by his employer, citing the 2008 Supreme Court of Canada ruling in Honda Canada Inc. v. Keays.

The court agreed that additional damages were warranted, pointing to the fact the termination meeting was surreptitiously recorded by Teljeur. The recording, it said, “highlighted a number of disturbing aspects about (Teljeur’s) termination.”

This included:

  • Failure to give the worker notice of the termination in writing, despite Teljeur asking for it at least three times.
  • Failure to deliver his Employment Standards Act entitlement no later than seven days after employment ended or the next pay, as required under the act. (The company said they mailed him a cheque on Jan. 14, 2022, which he did not receive. A new cheque was issued on June 8, 2022.) The court noted this meant he “had to go through the holiday season” without money from his employer.
  • Pinestone Resort owed him $16,680 for reimbursement of out-of-pocket expenses. It didn’t pay him because he was demanding interest on it. But the court noted that represented about 23 per cent of his annual income and was a “very significant financial burden” to carry. At the time of termination, he was told to figure out his credit card expenses so he could get paid “before the next week or so.”
  • The employer assured him it would pay him about 8.5 weeks’ severance, but then limited the amount it paid to his statutory entitlement.
  • It tried to encourage him to resign during the course of the termination meeting. He was told he could tell staff he resigned three weeks earlier, which was “not, of course, accurate,” the court said. The employer told him: “You don’t have to resign. I’m saying it is better off for you to do it. They’re offering for you to do that.”

Threat to call police

Teljeur also referred to the fact he was told he could not come back onto resort property without permission from management and staff were told not to speak with him while he was on company property. He was further advised that police might be called if he came on the property.

But the court found nothing wrong with the employer saying it might call police if he was on property without permission.

“While the plaintiff was upset at the employer’s threat to call the OPP and to prevent him from coming on the premises, I have concluded that the employer was within its rights to control access to its business premises and to give instructions to its employed staff while they were working on the business premises. This is not a factor which would justify a claim for moral damages,” it said.

The court noted that, in Honda, the award for moral damages needs to reflect actual damages suffered. In this regard, it pointed to the following evidence from Teljeur’s affidavit:

“The company’s failure to pay my ESA minimums, the company’s mislabelling of my ROE and the ensuing delay in collecting EI benefits put me and my family in an exceptionally vulnerable position. This added significant stress to my life, on top of the stress I was experiencing as a result of being terminated.”

It awarded $15,000 for moral damages.

Judgement

In summary, the court awarded Teljeur:

  • damages for reasonable notice based on a notice period of seven months less ESA or other amounts paid on account of notice already paid;
  • ten percent of the plaintiff’s compensation to the extent that benefits have not previously been provided;
  • amount owing on account of reimbursement expenses $16,680.03; and
  • moral damages $15,000.

For more information, see Teljeur v. Aurora Hotel Group, 2023 ONSC 1324 (CanLII).

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