Thu 28th November 2019 by Joel Fairbrother
Dunbar v Northern Air, 2019 ABPC 179 is a recent case of the Alberta Provincial Court. I write this case comment because this was a trial I ran and was successful in on behalf of the Plaintiff, Mr. Dunbar.
Mr. Dunbar was a pilot who was 37 years old and who had worked for a charter flight company for about 2 years. He received a phone call wherein his employer informed him, “... we are doing some restructuring and some downsizing here and unfortunately we are calling to let you know that we do have to lay you off effective today.”
After that, he was required to turn over his keys and his employer announced internally that he was “no longer employed” there. The Plaintiff stated in trial that it was his understanding that his employment had been terminated. 2 months later, his employer issued a letter asking him to return to work, and his proposed start date would have been almost 3 months since his last day had been. He did not return.
The Provincial Court agreed that it was a termination of employment, and found that he was not obligated to return to work when he was asked to return. These findings are very important for the following reasons:
- The Court found that his employment was outright terminated when the actual words used were “lay off”, because the other surrounding circumstances suggested it was more like a termination than a lay off;
- If it were considered a lay-off rather than a termination of employment, then by virtue of the Canada Labour Code1 the Defendant had a stronger position that the Plaintiff was not entitled to severance;
- If an employer asks a terminated employee to return to work after his or her termination of employment and the employee refuses to do so, in some circumstances the Court can reduce the overall damages award owed to the employee. In Dunbar, the Court was of the view that he was not required to return, so it did not reduce the damages owed to him by the employer.
In the end, the Provincial Court of Alberta awarded Mr. Dunbar 5 months reasonable notice of termination (severance). This is a substantial notice period for a young, relatively short-term employee in this kind of position.
If you recently received a “lay-off” notice or it otherwise seems like your employer is “pushing you out”, consider getting legal advice from an employment law office like Taylor Janis LLP.
1 There is a fairly strong argument that any “lay off” can form the basis of a constructive termination of employment in the right circumstances, and can lead to reasonable notice (severance). However, the Canada Labour Code is a special piece of legislation that applies to federally regulated employers like banks, telecommunications, interprovincial transport, etc., and it is less clear in the context of those specific employers whether a lay-off would be considered a constructive termination of employment. That legislation applied in this case. I would certainly argue that would still be a constructive dismissal, but it is less clear than it would be for an employee that is not covered by this legislation.