August 15, 2022

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CHAUDHRI: Pandemic doesn’t justify more pay to terminated

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Sonia Gracias was a 39-year-old dental hygienist when she was terminated from Walt Dentistry.

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She earned $75,000 and was employed at the practice for five months prior to her termination on March 15, 2020 — just days before the nation was hurled into a COVID induced lockdown.

A single mom, Gracias received $16,000 in CERB benefits following her termination while she looked for new work. She applied to approximately 139 jobs and eventually re-employed seven months later providing dental practice management and advisory services.

Gracias sued Walt Dentistry for wrongful dismissal damages seeking her monetary losses for the seven months she was out of work. At a summary judgment motion heard on April 28, 2022, Gracias argued the pandemic lengthened her job search and, as such, justified a lengthening of her notice period.

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In contrast, Walt Dentistry argued Gracias was entitled to only one month of pay on her termination. It argued she had fabricated the evidence relating to her job search, a serious allegation the court didn’t take lightly. Walt argued the job market was flooded with jobs in the dental hygiene industry and that the pandemic had no injurious impact on her search to replace her job.

Despite her short five-month tenure, the court awarded Gracias three months of pay on termination.

Justice Perell found the effects COVID-19 had “on particular sectors of the labour market was not uniform.”

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The court recognized that some industries, like health care, saw an increase in job opportunities over the pandemic. The court did not accept the general premise that the pandemic was bad for all employees everywhere but instead found “it is a matter of evidence whether or not the pandemic harmed any particular job market.”

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Notably the court did not deduct the $16,000 CERB from Gracias’ three-month award, which amounted to $17,587.11.

There are a whole host of takeaways from this decision that employers, in particular, should consider.

CERB may not be a good defence to low-balling an employee on termination: The courts have rendered inconsistent decisions on whether or not CERB is recoverable when an employee receives wrongful dismissal damages.

Consider the job market: If your industry is teeming with jobs, a termination package can consider this, provided you are, at all times, offering a terminated employee at least their minimum statutory rights on termination.

Go easy on the litigation tactics: remember that provocative litigation tactics, i.e. challenging the credibility of your opponent, may fall flat in court. Justice Perell referred to Walt Dentistry’s tactics regarding Gracias’ mitigation documentation as “going for the jugular” a “wrathful attack” and “releasing the dogs of litigation war.” Attacking the credibility of any party in litigation must be managed with great care.

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On to this week’s questions:

Q. How do employees learn more about the right to disconnect legislation? No one has brought it up at my work yet, which is making it confusing for me and my coworkers.

A. The right to disconnect legislation in Ontario applies to workplaces with 25 or more employees. By now, employers of this size are required to have a written policy on how the legislation will be implemented in workplaces. If you do work at an employer of this size, ask for a copy of the policy.

Q. As a technology company, we have had to scale back operations given the current economy. We made several offers of employment that had to be revoked about four weeks before projected start dates for some employees. Are there any potential risks we need to be aware of?

A. Prospective employees that are terminated before their start date could be entitled to damages, particularly if they sustained losses after leaving a secure previous employment. Also, if a candidate turned down another job offer in order to accept yours, candidates could seek damages relating to the lost opportunity.

Have a workplace issue? Maybe I can help! Email me at [email protected] and your question may be featured in a future column.

The content of this article is general information only and is not legal advice.

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