A plant supervisor at a pellet company in British Columbia who was laid off during the pandemic, and took the position she had been terminated, failed to mitigate her damages by accepting an offer to return to work.
It was a result of “miscommunication and misunderstanding” brought on by her distrust of the plant manager and anger over a colleague being recalled to work ahead of her, the B.C. Supreme Court said.
It ruled an appropriate notice period would have been 15 to 16 months for the worker, who was 64 at the time of termination with 20 years’ tenure.
Background
KB was a plant supervisor at Princeton Standard Pellet Corporation. She worked for the company for more than 20 years.
The COVID-19 pandemic significantly impacted its business, and KB was laid off as a result. Her ROE indicated she had been laid off effective April 4, 2020, with an expected recall date of “unknown.”
KB asked for a meeting with the employer on June 9, 2020. She learned that another plant supervisor had been recalled and was angry about it — she believed that, based on her seniority, she should have been called back first. She had run out of money and wanted to return to work.
The employer said she would not be returning until the end of July. She was livid, because she believed the other supervisor’s skills were far inferior to hers — and thought he had been called back because he was friends with the plant manager.
The company said it was policy to recall laid-off employees based on seniority. But there was no such policy for management as, prior to the pandemic, there had never been a management layoff. It said the reason KB was not recalled was because it was not hiring new press operators in the summer of 2020 and, as a result, her training skills were not needed.
KB next met with her employer on July 2, 2020. At this point, it became aware she was angry that the other supervisor had been called back before her. KB was angry, swore at the plant manager and slammed the door as she walked out.
Did she ask to be laid off?
There was disagreement as to whether KB had asked for a layoff. The company said it recalled the other supervisor because he had asked to not be laid off whereas it understood KB was happy to be off work until the end of July.
KB did not agree with that position — she said she did not ask for a layoff and was not happy to be off until the end of July. Her notes from the July 2 meeting indicate she felt she did not have a job at Princeton anymore. She said she lost trust in both the plant manager and the company.
The August meeting
The plant manager called a meeting with KB on Aug. 6, 2020, to discuss her employment. KB said she was told Princeton was going to extend her benefits to the end of the year and, if she wasn’t recalled, she would receive eight weeks’ severance.
The plant manager said KB was unhappy about the offer of extended benefits and wanted to come back to work. She asked if she was ever coming back and he said yes, but the date was uncertain.
KB said the plant manager had his feet up on the desk and was leaning back and smirking — which she took to meant she was being fired that day.
The Supreme Court of British Columbia said it was “not probable” that she was terminated on Aug. 6. The company had taken steps to extend her benefits and its correspondence with its benefits provider, Manulife, showed no intention to terminate her.
“I find that (KB’s) judgment about his behaviour and her understanding of what she was being told was clouded by her anger about (the other supervisor) being recalled before her. She felt she was not being treated fairly and did not see anything positive in the fact that Princeton had arranged to extend her benefits to the end of the year,” it said.
KB met with the plant manager again on Aug. 12, 2020. Again, their evidence on the meeting differed — but both agreed that KB was concerned she no longer had a job with Princeton. The plant manager assured her she did have a job, but KB did not believe him.
There was no communication between the parties between Aug. 12, 2020, and Oct. 1, 2020. On that date, KB’s counsel sent a demand letter to Princeton.
The demand letter
The letter asserted KB had been terminated and sought damages for wrongful dismissal. It took the position that KB was terminated on Aug. 20, 2020, when her layoff extended beyond a “temporary layoff” under the Employment Standards Act.
“[Princeton] has already terminated (KB’s) employment by operation of law. She does not have to wait until the end of the year to claim her severance entitlements. As she never signed a contract of employment which displaced the presumption of common law notice upon her termination, I have advised my client that [Princeton’s] proposed severance package falls well short of her common law entitlements such that she is well-positioned to commence a wrongful dismissal claim,” it read in part.
It sought 18 to 22 months’ notice including vacation pay, benefits and bonuses.
Offer to return
On Oct. 8, 2020, the plant manager emailed KB and said she had not been terminated and that, “in any event, the first step in resolving this matter is to determine if (KB) wanted to return to work.” Later that day, the company’s CEO wrote to KB’s lawyer and said any further communication should be directed solely to him.
On Oct. 23, the plant manager followed up with KB indicating he wanted to move forward as soon as possible and asked her whether she was interested in returning to work. He followed up again on Oct. 26, indicating he had been attempting to reach her for a recall date and his intention was for her to come back as soon as Nov. 3, 2020.
KB did not respond to this correspondence. She, and her counsel, did not explore with anyone at Princeton the option of a return to work. On the evidence, the court said, it was clear Princeton did not understand, until after receiving the demand letter, that a termination had occurred by operation of law or that it had a liability to her in relation to her layoff.
The court lightly chided the company for not knowing the law on this front. “As the employer, Princeton should have been aware of the deemed termination provisions of the Act and the Regulation,” it aid.
After it retained legal counsel, in a letter dated Oct. 30, 2020, Princeton acknowledged it owed KB eight weeks’ pay in lieu of notice and repeated the offer to return to work. That offer was not accepted, and there was no evidence KB seriously entertained it.
She asserted that she would be returning to an atmosphere of hostility, humiliation and embarrassment.
The court’s decision
The court said the date of termination, for the purposes of the act and common law, was Aug. 30, 2020.
On that date, KB was 64 years old and had been employed by Princeton for more than 20 years. She sought 24 months’ notice and Princeton countered with a range of 12 to 15 months.
The court settled on a range of 15 and 16 months as appropriate. Then it turned its attention to her duty to mitigate damages. In this case, the main question was whether it was reasonable for her to return to work at Princeton to mitigate her damages.
The court noted that KB’s layoff had nothing to do with performance, and there was nothing personal about the decision. It accepted the company had a legitimate reason to recall the other plant supervisor first and it was not a decision made with the intent to humiliate her.
It ruled a reasonable person would have accepted Princeton’s offer to return.
“There was no evidence to support that she would be returning to an atmosphere of hostility, embarrassment, or humiliation,” it said. “There was no evidence that either (the plant manager) or (the CEO) bore (her) any animus. (KB’s) mistrust of (the plant manager) appears to have been an unfortunate result of their miscommunication and misunderstanding,” it said.
The layoff occurred in the context of a global pandemic during which many employees were laid off, including many others at Princeton, it said. There was a reasonable explanation for why KB was not recalled when other employees were.
Had she returned to work as offered, she would have been made whole, it said.
It dismissed her claim. Princeton did not seek costs, so none were awarded.
For more information see Blomme v Princeton Standard Pellet Corporation, 2023 BCSC 652 (CanLII)
