A British Columbia man has been awarded six months pay in lieu of notice after being dismissed from a sales job at a company that hired him away from his job and then let him go after just six months of employment.
On Aug. 29, the Supreme Court of B.C. handed down its decision in the case of Greenlees v. Starline Windows LTD., awarding James Greenlees six months pay of $28,000 plus legal costs of $8,000. Greenlees was 43 years old and employed as a sales associate for Starline Windows for a period of six months.
Prior to working with Starline, Greenlees was employed by Trevor Jarvis Contracting as a sales associate in the construction industry for 18 months and made about $100,000 a year. Starline’s then-sales manager contacted Greenlees about a job opportunity. Through the course of two meetings, the company made a number of representations about projected income, the “pivotal” nature of his role and opportunities for growth within the company.
Justice Geoffrey Gomery found that Greenlees was not looking for other work at the time that he was contacted, that he had to be convinced to join Starline and that the representations made were reasonably relied on by Greenlees in making the decision to change employers.
Although Gomery did ultimately find that this was sufficient for a finding of inducement, he also found that this case was “on the line” and inducement was only given moderate weight in increasing the notice period.
“He specifically noted that inducement is on a scale,” says Lia Moody, managing partner of Samfiru Tumarkin LLP in Vancouver. “I think a lot of people go into an inducement argument thinking that either representations that you are going to be with a company until you retire were made or that you weren’t induced and there are very few places in between where you can land that make an actual impact on your damages award.”
In fact, Moody says, the main factor in increasing the notice period for Greenlees was the seven-month-long job search he had to do in order to find alternate employment and the fact that his efforts in so doing were “reasonable and thorough.”
As a result, Gomery took the baseline to which short-service employees are entitled to two to three months and increased it to six months, as requested by Moody.
“The evidence on inducement ended up being uncontradicted by the defendant and that was not something I knew at the outset or really appreciated until the discovery stage and, so, once I knew the inducement evidence was going to be uncontradicted and accepted as fact from Mr. Greenlees, I felt a lot more confident about being able to secure a notice period that was greater than the two-to-three-month benchmark,” says Moody.
She thought the “sweet spot” might be three to four months because of some issues around the scarcity of available work and a “bait and switch” that occurred after he was hired. Greenlees was assigned to renovation projects with a reduced opportunity to earn income, as opposed to new construction projects. That made it sufficient to bump to six months, but Moody admits she thought it was a “big ask” going into the hearing.
Of note in the case is the fact Greenlees is a salesperson — a field many think provides easily transferable skills to a next job.
“What I think is helpful about this decision is that Mr. Greenlees is a sales associate and as employee side counsel I’m constantly up against defence counsel who tell me ‘This guy is just a sales guy, you can get a sales job anywhere and the skills are so transferable to other industries it shouldn’t be a problem for him to mitigate,’” says Moody.
But Moody says she is starting to see some courts push back on that view.
“It’s not something you can take judicial notice of, it’s not something you can accept as a principle that automatically reduces notice period and that you need evidence. Clearly, the single most important thing in increasing the notice period was the fact Mr. Greenlees made what were ultimately unassailable job search efforts but wasn’t able to find anything for seven months following his termination.”
Over seven months, Greenlees applied to at least 42 companies and was invited for interviews at eight companies. He had two offers of employment but at a salary lower than his previous job. He eventually found a job making $70,000 a year plus commission.
From that it was inferred that comparable positions were scarce or that the market was overly saturated with competition.
Moody says that when Greenlees approached her to represent him, it was a similar scenario to many other clients who call her when they have been let go after a short period of being with an employer and feel they aren’t entitled to more than what is offered them, when in fact courts are recognizing it can be harder for these employees to find their next job.
She has seen employees employed for less than a year do better than some clients who have been employed for more than five years.
“I very much get the impression still that short-service employees call me making a little bit of a ‘Hail Mary’ pass — they phone and are embarrassed to say ‘I probably won’t get more than a week because I’ve only been there six months,’ but [in] courts across the country — and I’m finding particularly so in B.C. — short-service employees employed for three years or less are entitled to disproportionately longer periods of notice. The idea is that [it’s] because it’s deemed to be more difficult for short-service employees to explain this blip on their resumé.”