Client Win: 74-Year-Old Construction Supervisor Secures Justice After Abrupt Dismissal

Nezic v. Dom-Meridian Construction Ltd.

Samfiru Tumarkin LLP achieved a significant victory for Mr. Nezic, a dedicated employee with over three decades of service, who was abruptly dismissed by Dom-Meridian Construction Ltd. at the age of 74. In a powerful decision, the Ontario Superior Court of Justice awarded him 20 months of severance, highlighting the employer’s failure to provide reasonable notice and respect his longstanding contributions.

Facts of the Case

• Employee Background: Nezic was 74 years old at the time of dismissal and had worked for the defendant and its predecessor for more than 31 years, primarily in supervisory and foreman roles.
• Nature of Employment: Dom-Meridian is a family-owned construction company in Ontario providing seasonal services for private developers and municipalities. Due to the seasonal nature of the work, employees were subject to annual layoffs.
• Dismissal Timeline: In October 2012, Nezic was abruptly sent home in the middle of a shift and told not to return. Unlike prior years, no formal or informal notice of layoff was provided, and no recall date was discussed.
• Employer’s Position: Dom-Meridian alleged that Nezic had voluntarily retired in 2010 and any subsequent work was project-based and not part of his previous employment.
• Employee’s Position: Nezic maintained that he had not retired and had continued working for the company through 2012. He argued that the abrupt termination in October 2012 constituted wrongful dismissal.

What was at stake?

• Amount of Severance: The court needed to determine how much severance Nezic was entitled to, considering his long tenure, age, and limited re-employment opportunities.
• Mitigation Efforts: The court also examined whether Nezic had fulfilled his duty to mitigate damages by attempting to find suitable alternative employment.

The Court’s Decision

Severance Pay: Justice Lederman ruled that Nezic was entitled to 20 months of severance pay, citing:

• Age: At 74, finding comparable employment was unlikely.
• Length of Service: 31 years of continuous employment demonstrated loyalty and dedication.
• Nature of Employment: Nezic’s supervisory roles and the company’s treatment of him highlighted the lack of reasonable notice.

The court rejected the employer’s argument that the limited work period in 2012 reflected a “new normal,” finding that 2012 was an anomaly due to a slow work year.

Duty to Mitigate: The court found that Nezic made reasonable efforts to mitigate his damages, including:

• Applying to other companies for work.
• Accepting an offer from Dom-Meridian in 2013 on a without-prejudice basis.

However, when the employer offered him only a demoted position as a flagman—a significant downgrade from his prior roles—Nezic was not obligated to accept such demeaning work as part of his duty to mitigate.

Key Takeaways for Employees

• Long Service Matters: Employees with long service are often entitled to significant severance based on their age, tenure, and difficulty finding similar work.
• Inferior Positions May Not Be Required: Employees do not have to accept positions that represent a substantial downgrade in responsibilities or dignity to mitigate damages.

Key Takeaways for Employers

• Clear Documentation of Layoffs: If employers don’t clearly explain layoffs or provide recall dates, it can be treated as a termination without cause instead of a temporary layoff, potentially leading to wrongful dismissal claims.
• Offer Comparable Roles: Demoting an employee to an inferior role can lead to constructive dismissal claims.
• Assist with Mitigation: Providing references or support can help reduce severance liabilities.

Workplace issue? Contact our team

Since 2007, Samfiru Tumarkin LLP has helped thousands of non-unionized employees resolve workplace issues. If you’ve been offered a demotion or unfair severance package, our experienced lawyers can help you understand your rights and secure fair compensation.

Whether you’re in Ontario, Alberta, or B.C., we can review your situation, enforce your rights, and ensure that you receive the compensation you deserve.