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A typical wrongful dismissal usually involves the termination of an employee and the assessment of the severance package involved. Arguably, one of the most important factors to consider in determining the amount of notice an employee is given, is the length of time that person was employed for. An employee who has worked for their employer for 20, 30 or even 40 years will be looking to get a significant severance package to reflect those years of dedicated service. There is also caselaw to support short tenured employees received elongated notice periods since they did not glean the experience needed to assist meaningfully with re-employment.
But what happens when you sign an offer of employment, get ready to start your first day of work, then suddenly, the employer pulls the offer, leaving you out in the cold? The recent decision in Buchanan v. Introjunction Ltd., 2017 BCSC 1002 (CanLII), confirms that this would also be a wrongful termination, and in Buchanan specifically, resulted in a severance package of six weeks’ pay in lieu of notice.
In or around July 2016, the Plaintiff applied for work with the Defendant. He was not recruited, but he was currently employed in a secure position elsewhere. An initial meeting between the parties took place in September 2016, and after some back and forth regarding particulars of the position, an offer of employment was extended, accepted and returned to the Defendant on October 19, 2016. The Plaintiff’s first day of work was set for November 1, 2016, however, on October 29, 2016, the Defendant met with the Plaintiff and informed him the offer was being “retracted”.
The judge quickly determined the situation to be a wrongful termination stating:
It is well established that, absent an express contractual provision to the contrary, an employee who is terminated without cause is entitled to reasonable notice or damages in lieu of notice. That proposition holds true even where the termination occurs before the employee has started work.
The real issue in this case is whether the defendant can rely on the probation clause of the Contract to terminate the plaintiff’s employment without any obligation to pay damages in lieu of notice. [emphasis added]
The judge also found that the employer could not rely on the probationary clause to terminate the Plaintiff without notice since it covered a three-month period starting on November 1, 2016 (the Plaintiff’s start date). Since the Plaintiff had not started work, he was not covered under the probationary clause in the contract. Further, the point of probationary employment is to determine suitability of the employee, and since suitability was not the reason for the “retraction” of the offer, it could not rely on the clause to avoid payment to the Plaintiff.
In determining the reasonable notice period the Plaintiff was entitled to, the judge stated the following:
In the circumstances of this case, the factors weighing in favour of a longer notice period include the nature of the position, the relatively high salary and the fact that the plaintiff left secure employment to join the defendant, although he was not recruited. The factors weighing in favour of a shorter notice period include the minimal length of service, the precariousness of the position and the availability of alternate employment.
Taking account of all of the relevant factors, I find that a notice period of six weeks is reasonable.
While this case certainly supports the fact that employees are considered employees from the time the contract of employment is formed, and not from their first day of work, there are always individual circumstances to consider in an employment law context. For example, what if the employer retracted its initial offer, but offered a different job instead? What happens if you found re-employment with a new employer immediately after? What if the offer of employment was retracted after you arrived at work on your first day?
If you find yourself in a similar situation to the Buchanan case, or would like to discuss the other questioned posed above, call Monkhouse Law today for a free 30-minute phone consultation.
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