Bass v Boston Pizza International Inc., 2021 ABPC 315 (Higa, J) is a new Alberta Provincial Court decision involving a 17 year old dishwasher who worked at a restaurant for 1.5 years. The employer unsuccessfully argued just cause for termination of employment. The employee was awarded 3 months severance and $10,000 in aggravated damages for the manner of his termination of employment.
The case is interesting, and re-affirms a fairly recent developing technical principle in Alberta employment law: where a party suffers emotional harm due to the manner of dismissal, the party can claim aggravated damages for that without it the action being barred by the Workers Compensation Act.
Facts
Most of the relevant facts are as follows:
- The plaintiff employee worked as a dishwasher at a Boston Pizza franchisee location in Calgary
- The employee worked there for 1.5 years, and was 17 years old on the date of his termination of employment
- The employer purported to terminate his employment for just cause. The termination letter did not allege reasons for termination of employment
- The employee sued for many different things. Many of his claims were dismissed, but not his claim for wrongful termination and aggravated damages for manner of dismissal
- In the legal action, the employer said the reasons for termination were: insubordination, that the employee came “intoxicated to work every day”, and that the employee was late for work regularly
- The employment was terminated one month after the employee started reporting to a new supervisor. The evidence was that the employee and this supervisor had considerable difficulty getting along: the supervisor would criticize the employee, who would challenge that criticism
- The employer attempted to rely on one previous instance of discipline from a few months prior to termination of employment where the employee had been late, however, the manager who signed the discipline letter did not remember the incident at trial and said lateness was not a “huge issue”
- There were two other disciplinary instances close to the end of employment, and both were related to the employee and new supervisor being unable to get along and communicate effectively
- There was a meeting between the employee, supervisor and a manager, to attempt to resolve the issues between the employee and supervisor. The employee apologized for past behavior and committed to a positive attitude
- A few days later, the manager texted the employee and indicated that he could “not fix the issues”, and “I think it might be best if we part ways and I will prepare a separation letter for you”
- The employee did not understand his employment was being terminated. He reported for work the next day and he discovered he could not access employee time entry software. His employment was then terminated
- There was evidence that the employee suffered emotionally as a result of the manner in which his employment was terminated
- There was no evidence of the allegation that the employee had reported to work intoxicated or that he had been warned about that
Analysis / Conclusion
Judge Higa found there was no just cause for termination of the employee, reasoning as follows:
[60] To [the Manager’s] credit, he spent time and effort to try and diffuse matters and have Mr. Bass and Ms. Singh resolve their differences. The meeting of December 15 was an attempt to set the record straight and have the parties move forward in a productive and co-operative basis.
[61] However, only four days later and Mr. Bass not working one shift in between, [the Manager] texts and states, “I think it might be best if we part ways and I will prepare a separation letter for you.”
[62] In the context of the December 11 discipline report and meeting of December 15, it is unclear what specific actions Mr. Bass is to undertake and address. It is clear, he had to become more of a team player and try and work with Ms. Singh. On the other hand, it is also evident that Ms. Singh would need to make the same effort. However, neither party was given the opportunity, Mr. Bass was terminated before he next returned to work.
[63] The evidence does not support Bow Trail’s assertion that Mr. Bass had committed acts of insolence and insubordination, justifying termination of his employment for cause. The employment relationship certainly had its challenges, but was not fundamentally impaired and irreconcilable.
[…]
[67] Significantly, Mr. Bass was 17 years old at the time of termination. He was a student in high school. We all have challenges as individuals and even adults, with years of experience in the work force and in life, may lack the maturity and ability to deal with interpersonal challenges. It may be more of a challenge for a teenager to resolve work issues and personality differences.
The provincial court went on to find that the employee was entitled to three (3) months reasonable notice severance in the circumstances.
The court then found that the employee had suffered emotionally as a result of the manner of his termination of employment, and awarded $10,000 in aggravated damages in that regard, reasoning as follows:
[83] [the Employer’s] conduct in the manner of dismissal was misleading and unduly insensitive and caused Mr. Bass additional harm and mental distress. Mr. Bass was a high school student, trying to rectify and address issues at work, issues that had intensified only a few weeks earlier. He received mixed messages from his employer, was confused about his status and thought the parties had agreed to move forward in a more positive atmosphere. Mr. Bass is entitled to aggravated damages for mental distress arising from the manner of dismissal.
Finally, the court found that the Workers Compensation Act did not prevent the employee from obtaining his aggravated damages award. Although claims for injury in employment normally fall under WCB and prevent a lawsuit against the employer, in this case the claim was for mental distress caused by the manner of termination of employment, which is an exception to the general rule.
My Take
These severance numbers may not seem impressive to anyone not practicing employment law. However, the award is significant because it implicitly supports the principle that reasonable notice (severance) periods should be proportionately longer (months of severance per year of service) for short-service employees than for employees of 3 or 4 years’ service. Many cases have implicitly supported this principle in the past, and a few have explicitly supported it. The logic of that principle is essentially as follows:
- One purpose of a severance award is to help bridge the likely reasonable period of unemployment of the employee prior to finding a comparable job. This period is determined as at the time of dismissal;
- It is logically going to take longer for someone to get re-employed at a comparable job to the one they lost, when they have been with one company for a long time (10 years+, for example), obtained merit increases to their income, title, etc., and often-times been moved up to a job they may not technically be qualified for elsewhere;
- However, it is not logically (usually) going to take much longer for a 3-year employee to get a comparable job elsewhere than it would take for a 1.5 year employee to get a job elsewhere. If anything, the opposite is true because short-service is almost universally considered a negative mark on a resume.
As noted earlier, this case also re-affirms a fairly recent developing technical principle in Alberta employment law: where a party suffers emotional harm due to the manner of dismissal, the party can claim aggravated damages for that without the action being barred by the Workers Compensation Act. This might seem obvious to some at first, but it is significant because usually any workplace “injury” (including psychological) would be covered by WCB and therefore not something an employee can sue an employer over. This case does not change the law in this area, but it is a good example of the application of the relatively recent caselaw on the subject, and an affirmation that emotional harm caused by manner of dismissal is still something an employee can claim for in a wrongful dismissal action.
A published copy of Bass v Boston Pizza, 2021 ABPC 315 can be found at the following link: https://www.canlii.org/en/ab/abpc/doc/2021/2021abpc315/2021abpc315.html?autocompleteStr=bass%20v%20bos&autocompletePos=1
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