“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” Almost everyone has heard the “Miranda” warning.
While those rights come out of the United States and are mostly intended to apply in the criminal context, as the case of Teljeur v. Aurora Hotel Group, 2023 ONSC 1324 (CanLII) demonstrates, such warning can also be sage in the employment law context.
Facts
On December 6, 2021, the plaintiff, John Teljeur, was working as the General Manager of the Pinestone Resort & Conference Centre, which is operated by the defendants. The Pinestone Resort operates as a full-service resort and golf course in Haliburton, Ontario. On December 6th, two senior executives of the Pinestone Resort met with the plaintiff and advised him that his employment was being terminated. No cause is being alleged for the termination. The reason given by the employer is that the Pinestone Resort elected to retain an outside management company to manage the resort.
Mr. Teljeur surreptitiously recorded the termination meeting.
According to the transcript from the meeting, his employer told Mr. Teljeur as follows,
The way we’re going to do it…you need 8 weeks severance and obviously we’ll still pay you for the rest of this week on top of that. You are going back and forth this week, right? So, I’m not expecting you to do that stuff for free so that’s also going to get paid. I’m gonna put your termination date as of like Friday, so that you will still get paid for this whole week, and then you have another 8 other weeks of severance. It’s really 9 weeks, almost, or 8 ½ weeks, right?
Despite this assurance, the employer limited the amount paid to the plaintiff to his Employment Standards Act entitlement.
It was also apparent that the employer tried to encourage the plaintiff to resign his employment. During the course of the termination meeting, Mr. Teljeur was told that he could tell staff that he had resigned three weeks previously which is not, of course, accurate. During the course of the meeting his employer told him,
You don’t have to resign. I’m saying it is better off for you to do it. They’re offering for you to do that.
Mr. Teljeur demonstrably did not appreciate his employer’s actions and commenced a claim for wrongful dismissal damages plus additional damages for the manner of his dismissal.
Decision of the Ontario Superior Court
In granting the plaintiff not only his wrongful dismissal damages but an additional $15,000 for moral damages the Honourable Justice Michael K. McKelvey of the Ontario Superior Court of Justice provided the following reasons for decision:
[48] Section 54 of the Employment Standards Act, 2000 S.O. 2000, c. 41, provides that no employer shall terminate the employment of an employee who has been continuously employed for three months or more unless the employee has been given written notice of termination. At the meeting with the plaintiff on December 6, the plaintiff specifically asked on at least three occasions for something “in writing”. The employer agreed to do that, but there is no evidence before me that the employer gave the plaintiff notice in writing of his termination as required by the Employment Standards Act or as agreed to by the employer.
[49] The employer also failed to deliver his ESA entitlement no later than seven days after the employment ended or the next pay day in accordance with s. 11(5) of the Employment Standards Act. The defendants’ evidence is that they mailed a cheque to the plaintiff on January 14, 2022, which covered the Employment Standards Act entitlement. The plaintiff’s evidence is that this was not received by him. A new cheque was reissued on June 8, 2022. Even accepting the defence evidence that the original cheque was sent out to the plaintiff on January 14, 2022, it is clear that there was a significant delay in issuing the cheque to the plaintiff and that this delay was in violation of the Employment Standards Act. It also meant that the plaintiff had to go through the holiday season without the benefit of any financial support from his employer.
[50] Section 60(1)(a) of the Employment Standards Act provides that during the notice period the employer shall not reduce the employee’s wage rate or alter any other term or condition of employment. It is conceded by the defence at paragraph 9 of their factum that the amount of $16,680.03 is owed to the plaintiff on account of reimbursement of out of pocket expenses he incurred on behalf of his employer prior to the termination of his employment. These expenses have not yet been paid to the plaintiff. The defendants argue that the plaintiff was demanding interest on the sum owed. While the issue of interest might have been a live issue, it does not excuse the failure of the defendants to pay the principal amount. The principal amount in this case represents approximately 23% of the plaintiff’s annual income and is a very significant financial burden for him to carry since the date of his termination, especially given that he has not been successful in obtaining alternate employment. At the time of his termination the plaintiff was told by his employer that they needed to figure out his credit card expenses so he could get paid out, “before the next week or so”.
[51] It is also significant that in the termination meeting the plaintiff was told that he would receive eight weeks severance…
[52] Despite this assurance the employer limited the amount paid to the plaintiff to his Employment Standards Act entitlement.
[53] It is also apparent that the employer tried to encourage the plaintiff to resign his employment…
[54] It is not clear from the meeting whether the encouragement to resign was designed to limit the employer’s exposure in a wrongful dismissal claim. However, that possibility cannot be ruled out. I have not, however, taken into account this possibility in considering the claim for mental distress.
[55] The plaintiff also referred to the fact that he was told that he could not come back onto the resort premises without permission from management, that staff were told not to speak to him while he was on company property and that he was further advised that if he came to the property without permission the OPP might be called. … I have not taken this issue into account for purposes of the plaintiff’s claim for moral damages. While the plaintiff was upset at the employer’s threat to call the OPP and to prevent him from coming on the premises, I have concluded that the employer was within its rights to control access to its business premises and to give instructions to its employed staff while they were working on the business premises. This is not a factor which would justify a claim for moral damages.
[56] Having said that, the other issues as set out above do, in my view, constitute actions by the employer which were untruthful, misleading or unduly insensitive. They constitute a breach by the employer of their duty of good faith and fair dealing in the manner in which the employee was dismissed. I have also concluded that it would be within the reasonable contemplation of the employer that its manner of the dismissal would cause the employee mental distress.
[57] I am mindful of the requirement as set out in the Honda Canada decision that the award for moral damages must reflect the actual damages suffered by the plaintiff. In this regard, the evidence of the plaintiff is found at page 32 of his affidavit where he states,
The company’s failure to pay my ESA minimums, the company’s mislabelling of my ROE and the ensuing delay in collecting EI benefits put me and my family in an exceptionally vulnerable position. This added significant stress to my life, on top of the stress I was experiencing as a result of being terminated.[58] It is noted at paragraph 97 of the decision in Pohlv v. Hudson’s Bay Company, 2022 ONSC 5230, there needs to be some evidence to support the requisite degree of mental distress, but it need not be proven by medical evidence. There is no medical evidence in this case to document the stress suffered by the plaintiff. Nevertheless, I am prepared to accept the plaintiff’s evidence that all of the factors enumerated above added significant stress to his life on top of the stress he was experiencing as a result of being terminated.
Commentary
It is difficult to determine to which aspects of the employer’s conduct Justice McKelvey most strongly objected. One has to suspect, given what His Honour included in his reasons for decision, that the employer’s decision to say one thing and then do another did not sit well.
It is also difficult to understand why the employer had not yet reimbursed Mr. Teljeur for his substantial out-of-pocket expenses.
Takeaways for Employers
The takeaway from this case is that, first and foremost, compliance with those statutory obligations is critical. While other components of the case may have to be negotiated or litigated, one should not mess around with the minimum statutory entitlements- especially when one knows or ought to know that money could be tight.
The second takeaway is that if you tell an employee you’re going to pay them something, and you don’t make that payment conditional on something, you better pay it. The recording in this case was fatal to the employer’s position.
Takeaways for Employees
The takeaway for employees is that if your employer is jerking you around in your termination, then you may be owed more than just your regular severance entitlement.
Contact Me
Are you an employer thinking of letting an employee go? Are you an employee who has been let go and you’re encountering problems with how things are going? Call me. Email me. Do what works for you.
I can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321 x233.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He is also a part-time professor at Algonquin College teaching Employment Law for Paralegals. He has previously taught Trial Advocacy for Paralegals and Small Claims Court Practice.
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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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