Reasonable Job Search After Termination

Verlie Sison (“Sison”) was employed with an A & W franchise in Alberta. During the course of his employment with A & W, Sison reported to Dwayne Taylor (“Taylor”). Taylor eventually found his way to the Ottawa Region where he was the General Manager of a number of Wendy’s franchises owned by the Louis Bull Tribe No. 439 and its related entities. On the recommendation of Taylor, Sison was hired to manage the Wendy’s holdings under a three-year agreement. It was a term of the agreement that if Sison was terminated, other than for cause, the agreement was to be paid out in full. Sison started work with the Louis Bull Tribe on March 20, 2000 but was fired by May of 2000. Soon after the hiring of Sison, the Louis Bull Tribe lost faith in Taylor and decided to make changes in the management ranks which happened to include Sison, even though the evidence showed that during Sison’s short tenure, he improved the restaurants performance. Notwithstanding, the Employer made allegations that Sison was terminated for cause, having allegedly undertaken conduct detrimental to the employer’s interest. The Court found such allegation to be wholly without merit and that the sole reason for the termination was Sison’s association with Taylor.

The Employer’s fall back position was that a corporation and not the Tribe was the proper employer and that any Judgment should be restricted to the corporation, not the First Nation. The Court held that both the corporation and the First Nation were in fact responsible for damages. The Court indicated that the two entities were co-employers. In addition, the Court held that if the First Nation was not the Employer, it would be responsible for the damages in any event given that it interfered with Sison’s contractual relations with the Corporation. For those reasons, the Court found that the Corporation and First Nation were both responsible for damages.

The most significant aspect of the Judgment was that the Court did not apply the provision of the agreement indicating that Sison would be entitled to pay for the full tenure of the agreement (three years) in the event that he was terminated without cause. The Court found that since Sison did not undertake a reasonable job search, he failed to mitigate his damages. As a result, the Court awarded Sison only four months notice at his promised salary of $70,000.00 plus out-of-pocket expenses incurred in relocating to the Ottawa region as well as an amount ($5,000.00) for his return to Alberta. The Court also awarded damages in lieu of the promise of an automobile and housing allowance. In the end, Sison received a total award of $44,350.00 which was significantly less that he would have received over the three-year contract. The Court however, believed that it would not have been reasonable to pay Sison amounts when he failed to undertake a reasonable job search.

Sison’s plight should serve as a lesson that there are two elements in the quantification of wrongful dismissal damages. Firstly, a Court is to determine the appropriate notice period, which is then subject to reduction where an employee fails to undertake a reasonable job search (as happened here) or where alternate employment is found within the notice period.

As always, if one has an employment law issue, there can be no substitute for seeking independent legal advice for your specific question.