Trial Win: Ontario worker awarded nearly $85K in wrongful dismissal case

Wall v. M.H. Rowe Sheet Metal Fabricating Inc.

Samfiru Tumarkin LLP secured nearly $85,000 in wrongful dismissal damages for our client, Gengamah Wall, in the case of Wall v. M.H. Rowe Sheet Metal Fabricating Inc., a matter that was heard at the Ontario Superior Court of Justice (ONSC).

Senior associate Mackenzie Irwin successfully argued that Wall did make a reasonable effort to find comparable employment following her termination and was entitled to full severance pay after 35 years of service.

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Facts of the case

• On October 20, 1985, Wall begins working as an office administrator for M.H. Rowe Sheet Metal Fabricating Inc. At this time, she was 21 years old.
• In March 2020, Wall is temporarily laid off due to the economic impact of the COVID-19 pandemic.
• On October 26, 2020, Wall is terminated without cause — effective immediately. She is provided eight weeks of severance pay.
• Between December 2020 and October 2021, M.H. Rowe Sheet Metal Fabricating Inc. sends Wall approximately 5,000 job postings. She is also offered $1,400 for career counselling.
• Wall applies for her first job on February 26, 2021 — approximately four months after her termination.
• Wall struggles to apply for many of the jobs due to COVID-19 restrictions and her qualifications. At the time of her termination, her role had grown to include bookkeeping, payroll, tax remittances, accounts receivable, and accounts payable — duties that she didn’t receive formal training or certification for.
• Unable to secure comparable employment, Wall files a wrongful dismissal claim — seeking 24 months of pay and benefits.
• M.H. Rowe Sheet Metal Fabricating Inc. argues that Wall failed to reasonable mitigate her damages — entitling the company to a credit of four months.

The Court’s decision

After reviewing the evidence provided by both parties, the ONSC found that Wall did make a reasonable effort to find comparable employment following her termination and was entitled to 24 months of severance pay.

As a result, M.H. Rowe Sheet Metal Fabricating Inc. was ordered to pay the former office administrator $84,240 in wrongful dismissal damages.

Start date of job hunt wasn’t unreasonable

M.H. Rowe Sheet Metal Fabricating Inc. argued that Wall’s decision to start apply for jobs four months after the termination was unreasonable.

However, Justice Kumaranayake noted that she was in shock and lived in one of the “hotspots” for COVID-19. The four months were used to collect her thoughts, acquire a tablet, update her resume, and research potential positions online.

“[Given the circumstances,] I do not find it was unreasonable for [Wall] to be reluctant to venture outside of her home to start a physical job search. I accept her evidence that she searched websites (Indeed and Workopolis) for jobs.”

The courts don’t expect employees in Ontario, especially long-service individuals, to immediately begin searching for comparable employment after losing their job.

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Staff don’t have to apply to jobs they aren’t qualified for

M.H. Rowe Sheet Metal Fabricating Inc. also took issue with Wall only applying to 59 jobs out of the thousands that were provided.

The ONSC found that many of the postings she received from the company required post-secondary education or specific industry experience that she didn’t possess.

“[M.H. Rowe Sheet Metal Fabricating Inc.] did not identify which specific job postings [Wall] should have applied to or why it was of the view that had she applied, she would have been successful in obtaining that job,” Justice Kumaranayake said.

“I am not persuaded [that if Wall] applied for more of those jobs, she would have been successful in securing one that was comparable and within her abilities.”

The court also ruled that she couldn’t be faulted for declining the outplacement services, particularly given the state of flux caused by the COVID-19 pandemic.

Benefits must be provided during the notice period

Wall claimed that she was entitled to damages for her benefits throughout the notice period.

However, M.H. Rowe Sheet Metal Fabricating Inc. argued she wasn’t because they had cancelled benefits for all employees prior to her termination and replaced it with a $1,800 per year health spending account.

The ONSC disagreed. As part of Wall’s award, the company was ordered to provide her with $3,600 — representing the value of the benefits provided to staff over the 24 month notice period.

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• Vacation Pay in Ontario: Employee Rights
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Lessons for employees

• You’re likely owed more severance than your statutory entitlements: Eight weeks of pay was a drop in the bucket for Wall. If you receive a severance package from your employer, don’t accept anything before speaking with an experienced Ontario employment lawyer at Samfiru Tumarkin LLP. If the amount falls short of what you are owed, we can help you secure the compensation you deserve.
• Don’t forget about your benefits: Your severance package should include all components of your compensation, including your benefits. If you aren’t sure that everything has been accounted for in your package, reach out to our firm.

Lessons for employers

• Be mindful when sending job postings: If an employee is pursuing a wrongful dismissal claim, bombarding them with thousands of job postings isn’t an effective litigation tactic — especially if they aren’t tailored to the qualifications of the individual.
• Consult an employment lawyer before firing staff: Employers in Ontario should always seek legal counsel before terminating a non-unionized worker with or without cause. Since each employment matter is unique, a thorough review by our team will ensure that laws aren’t being broken and that the employee’s rights have been taken into account.

Lost your job? Speak with an employment lawyer

If you are fired or let go for any reason, contact the experienced employment law team at Samfiru Tumarkin LLP.

Our lawyers in Ontario, Alberta, and B.C. have helped tens of thousands of non-unionized individuals resolve their workplace issues.

We can review your situation, enforce your rights, and ensure that you receive the compensation you are legally entitled to.