The Ontario Superior Court of Justice Decision in Skov v. G&K Services Canada Inc., 2017 ONSC 6752
The plaintiff, Kevin Skov (the “Plaintiff”) began his employment with the defendant G & K Services Canada Inc. (the “Defendant”) on September 11, 1995. The Plaintiff was terminated on a without cause basis on June 1, 2016, meaning the Plaintiff was employed for the Defendant for over twenty-one (21) years. At the time of the Plaintiff’s termination he was employed as the Customer Development Manager. The Plaintiff was fifty-four (54) years old.
The Defendant paid the Plaintiff termination and severance pay in accordance with the Defendant’s obligations under the Employment Standards Act, 2000, S.O. c.41 (“ESA”). The Plaintiff commenced an action against the Defendant for wrongful dismissal damages in an amount equivalent to twenty-four (24) months’ pay in lieu of notice.
The Plaintiff brought a motion for summary judgment, which was heard by Diamond J on July 5, 2017. On July 12, 2017, Diamond J, by way of Endorsement and released as Skov v. G&K Services Canada Inc., 2017 ONSC 4284, ordered a mini-trial on the issue of the Plaintiff’s character of employment, as that issue was relevant to both (a) the determination of reasonable notice owing to the plaintiff, and (b) the plaintiff’s mitigation efforts. The mini-trial was heard on November 6, 2017.
The relevant issues for consideration for Diamond J to consider whether the Plaintiff held a management position as at his termination is relevant to the determination of the following:
- the Plaintiff’s damages for reasonable notice; and
- whether the Defendant has discharged their onus to prove that the Plaintiff failed to mitigate his damages.
ONTARIO SUPERIOR COURT OF JUSTICE DECISION
First, Diamond J stated that determining whether or not the Plaintiff held a management position as at his termination is relevant, because the Defendant took the position that the Plaintiff’s role prior to termination was not managerial and as such could not support the Plaintiff’s position that the Court find a reasonable notice of twenty-four (24) months, as he held a “senior and managerial role”.
Diamond J then noted that the hallmarks of being a manager, including whether the employee had autonomy, discretion and authority in the conduct of the employer’s operation. Further it was stated that “[t]he jurisprudence is clear that the nature of the work performed by the employee is more important than any title bestowed upon him/her.” (para. 29)
Did the Plaintiff hold a Managerial Position at the time of his Termination?
In consideration of the evidence presented, Diamond J found that the Plaintiff’s job title was “more of a legacy appointment due to his years of service” (para. 32). Specifically, the Plaintiff had no one directly reporting to him, he was not in control of either the employees or projects and that the Plaintiff’s position was more of a conduit on projects and not managerial, or supervisory.
Further, Diamond J noted that the Plaintiff benefited from his lengthy years of service with the Defendant, beyond his inflated position title as the Plaintiff participated in the Defendant’s Management Incentive Plan and the enjoyed the use of his own office. Yet, Diamond J determined that these factors did not translate into the Plaintiff actually performing managerial duties. As such, it was found that the Plaintiff did not hold a management position as at the date of his termination.
Reasonable Notice Period
Having regard to the Bardal factors, Diamond J found that the appropriate period of reasonable notice to be 18 months, minus the amount of termination and severance pay previously paid by the Defendant to the Plaintiff in accordance with the ESA.
Alleged Failure to Mitigate
It was not disputed that after termination, the Plaintiff created an updated resume, which stated his last position with the Defendant as Director of Process Improvement and Customer Development. It was also not in dispute that the Plaintiff never held any such position during his employment with the Defendants.
In consideration of an alleged failure to discharge a duty to mitigate, Diamond J considered a recent decision of Benjamin v. Cascades Canada ULC, 2017 ONSC 2583, noting that the employer mares the onus to establish (para. 41):
(a) that the employee did not take reasonable steps to seek comparable employment “by the exercise of proper industry in the search”; and
(b) had the employee taken those reasonable steps, he/she “could have procured” such comparable employment.
In light of the above, Diamond J considered the evidence, which revealed that the Plaintiff applied for 43 managerial positions through LinkedIn. However, there was also evidence that the Plaintiff’s LinkedIn profile described his final position with the Defendant as Director of Process Improvement and Customer Development. It was also determined that the Plaintiff applied to approximately 80 additional managerial position, including vice president and director.
The Defendant argued that none of positions the Plaintiff applied for were comparable with his actual position of “data analyst”. As such, the Defendant argued that the Plaintiff’s damages for reasonable notice ought to be significantly reduced.
While Diamond J found that he had some difficulty with the Defendant’s position, it was “reasonable to conclude that the Plaintiff likely had a subjective, honest belief that he could find comparable employment in some type of management role.” (para. 45)
However, Diamond J found that there is no dispute that the Plaintiff’s LinkedIn’s resume was inaccurate, and as such, the Plaintiff’s mitigation efforts were compromised by his decision to “overshoot” and seek employment in a position, which was simply not comparable with his actual duties, responsibilities and abilities. Diamond J clearly stated that “[t]he Court cannot and should not condone this type of misrepresentation, especially given that the plaintiff did not offer a satisfactory explanation for doing so.” (para. 46).
Given the above, Diamond J stated that he could not find that the Plaintiff reasonably discharged his duty to mitigate his damages. More specifically, Diamond J found that the Plaintiff did not try to secure employment for which he knew or ought to have known to be qualified. As such, Diamond J held that the Plaintiff’s reasonable notice period was reduced by two (2) months, meaning the Plaintiff’s net damage award was sixteen (16) months.
Although the reduction of the reasonable notice period in the above-discussed case was not substantial, it is an important reminder that an employee’s inflation of their position during the mitigation period is likely to result in monetary consequences. The above-discussed case is an example of the court’s refusal to condone misrepresentations with respect to job searches and one’s duty to mitigate. It is advisable that employees are cautious about the representations they make when seeking employment. It is also advisable that employers accurately convey position titles to avoid any potential litigation to determine the nature of an employee’s position.