In recent appeal decision, Northern Air Charter (PR) Inc v Dunbar, 2023 ABKB 171, released by the Court of King’s Bench of Alberta, Justice A. Woolley upheld a trial judge’s decision to award the plaintiff wrongful dismissal damages. Contrary to Northern Air’s assertion, Dunbar was not laid off but instead terminated. Northern Air’s attempt to recall him to work and Mr. Dunbar’s refusal did not constitute a failure to mitigate in the circumstances.
Background
Dunbar is a pilot who was told over a phone call he was being laid off due to restructuring. He was provided no notice or payment in lieu. Shortly after Northern Air emailed its employees advising that Dunbar no longer worked for the company and shut him out of most of the company’s website. Some months later Dunbar’s lawyer contacted the company stating that Dunbar had not been laid off, rather he was terminated. Thereafter the company responded by recalling Dunbar back to work, which was refused. Dunbar commenced a claim against the company.
At trial the judge found that Dunbar had in fact been terminated. The company alternatively argued that Dunbar had failed to mitigate his loss of employment by refusing the recall. The judge did not agree and awarded wrongful dismissal damages.
Upon appeal Justice A. Woolley dismissed the appeal stating that Dunbar was terminated and he did not have to accept the recall in the circumstances. In particular, Dunbar lost 2.5 months worth of income prior to the recall for which Northern Air did not offer to compensate him for. Had he returned he would have been put in an “awkward position of either giving up his legal claim for notice, or being engaged in legal proceedings with his employer”.
Analysis
Employers must be careful as to how they choose to terminate their employees. They cannot use “layoffs” as an excuse to avoid providing employees their termination entitlements. Nor will a recall to work be considered legitimate if the circumstances prejudice the employee. The law does not operate in a vacuum, the court will review the relevant facts to determine whether an employer’s actions comply with the law.
Takeaway
Employees who have been laid off should ensure that the lay off is legitimate. Employers do not have an automatic right to lay off, and employment contracts often have provisions permitting the employer to do so. Additionally, if the employer attempts to recall the employee to work, they may not have to agree and still be entitled to notice. Each case is different, so it is important to obtain legal advice as soon as possible.
If you have been terminated and/or subsequently recalled, and are unsure as to what your entitlements may be, contact JPak Employment Lawyers as soon as possible for legal advice before signing anything. Email us at info@jpakemploymentlawyers.com or contact us here.
