A 67-year-old printing specialist who was terminated during the COVID-19 pandemic has been awarded 24 months’ notice for wrongful dismissal by the Supreme Court of Nova Scotia. But the court clawed back the award due to his failure to mitigate his damages, resulting in a final award of just over $3,300.
M.O., who had worked for Bounty Print Limited and its predecessors for 41 years, was one of six employees terminated in January 2022 as the company grappled with severe financial challenges brought on by the pandemic. The ruling noted that his dismissal followed a sharp decline in business, with orders plummeting by 70 to 80 per cent within 30 days of the pandemic’s onset.
The court recognized M.O.’s longstanding contribution as a bindery specialist, acknowledging his limited formal education and age as significant factors in his job prospects. It emphasized the difficulty M.O. faced in finding similar employment, particularly in an industry where traditional printing skills are increasingly less in demand. However, despite these challenges, the court found that he did not meet his legal obligation to mitigate his damages.
Two job offers declined
After his termination, M.O. declined two job offers: one from a new employer, ADR, which offered him a position at a lower wage, and another from Bounty, which sought to recall him to his previous role.
The court found that both offers were reasonable under the circumstances.
“While (M.O.) was a 67-year-old skilled worker in a dying trade, both ADR and the Defendants clearly preferred to hire someone with his skills and years of experience than to find and train someone new,” the court said. The ruling concluded that a reasonable person in his position would have accepted the employment opportunities, particularly given the precarious nature of the job market at the time.
Award
The court awarded M.O. damages totaling $3,302.76, accounting for lost wages, pension contributions, and health benefits between the termination and the date he could have reasonably been expected to return to work.
The court also recognized the breach of fiduciary duty by Bounty Print Limited for failing to issue a required Statement of Termination of Employment, which delayed access to his pension.
“They refused to recognize that (M.O.) had been terminated despite the obvious fact that he had been,” the court said. “Clearly, the Defendants were misguided in this regard. However, I do not accept that they were attempting to be dishonest, high-handed or malicious in how they dealt with (M.O.) or his pension.”
No additional damages were awarded for this breach.
Aggravated and punitive damages
The ruling also addressed M.O.’s claims for aggravated and punitive damages, which were dismissed. The court found no evidence of bad faith on the part of Bounty or its co-defendant, Taylor Printing Group Inc., despite his allegations that the defendants acted in a high-handed or malicious manner.
M.O. argued his employer engaged in bad faith by paying his statutory benefits over eight weeks instead of in one lump sum. But the court rejected that notion, noting that the language in Nova Scotia’s employment standards legislation.
“Unlike Ontario’s Employment Standards Act, 2000, S.O. 2000, c. 41, which makes it clear (at s. 61) that statutory benefits are to be paid in a lump sum, our legislation is vaguely worded,” the court said. “Assuming, without deciding, that there was an obligation on the Defendants to pay (M.O.) his statutory benefits in a lump sum, I am not at all satisfied that failing to do so constituted bad faith. The Defendants sought legal advice… on the matter and were advised that paying out the eight weeks’ notice ‘in the normal course’ was fine. They acted on that advice. There was no bad faith in doing so.”
The court noted that the defendants had genuinely intended to bring back laid-off employees once the business stabilized and had not sought to deceive M.O. or withhold benefits unjustly.
In conclusion, the court acknowledged the significant impact the pandemic had on Oakley’s employment but underscored the importance of mitigating damages in wrongful dismissal cases. The ruling serves as a reminder that even in difficult circumstances, employees are expected to take reasonable steps to reduce their losses following termination.
For more information, see Oakley v. Bounty Print Limited, 2024 NSSC 224 (CanLII).
