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| Julia Brewster |
Ferweda had worked as an operation specialist for Celgar for just under two and a half years before he was let go without cause citing downsizing as the rationale. Prior to working for Celgar, Ferweda held a similar position with Catalyst Paper Construction for 27 years.
The central issue decided by the court was whether Celgar had induced Ferweda to leave their secure employment position at Catalyst. And if so, what notice period was appropriate.
The BCSC ruled Celgar induced Ferweda to leave employment at Catalyst
In early 2018 Ferweda received an email from a recruiter representing Celgar, concerning a job opportunity at the Celgar Castlegar mill. The position offered a slight promotion from Ferweda’s current position at Catalyst. The email invited Ferweda to recommend suitable candidates for the position. This initiated an
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During his visit to the Castlegar mill, Ferweda met with senior management who highlighted that “the benefits at Celgar were far better than those at Catalyst; unlike Catalyst Celgar paid for overtime and Celgar hired for the long term.” When the manager of human resources asked how long Ferweda could commit to a job at Celgar, Ferweda responded he could commit for five years or more.
Celgar offered Ferweda the position in March of 2018; however, Ferweda declined the offer. The base salary was identical to his position at Catalyst, the position was also no longer a step up from his previous position, it was the same, and he did not feel his employment with Catalyst was in jeopardy.
After Ferweda declined the position, he was told there was flexibility with the salary and Celgar made a second offer with an increase of $10,000 to the base salary. This increase was incentive enough for Ferweda to accept the offer and resign from Catalyst. Ferweda started working for Celgar in April 2018 and was terminated in September 2020 citing downsizing. Celgar paid Ferweda a total of five months’ salary upon termination.
The court ruled that Celgar induced Ferweda and that Ferweda reasonably relied on this inducement. An expectation was created that the opportunity available for Ferweda at Celgar was advantageous enough that Ferweda would leave his secure long-standing position with Catalyst.
In coming to this conclusion, the court considered the following:
- the fact that Ferweda was not actively seeking another job when the recruiter emailed him;
- during Ferweda’s visit to Castlegar, the Celgar team made the job look attractive with express statements about Ceglar being better than Catalyst;
- Ferweda was told that Celgar was hired for the “long term” and when Ferweda was asked how long he would commit, there was an implication that the position would be long-term;
- Ferweda did not accept the initial job offer and only took the position with the increased salary.
What was reasonable notice in this situation?
The court ruled the inducement on behalf of Celgar, the unique character of the employment and Ferweda’s age all led to an increased notice period. There were few comparable positions available for Ferweda, and he had spent the majority of his adult working life in the pulp mill sector. While there may have been jobs in other sectors, that was not a reasonable option for Ferweda given his past work experience. Because the inducement was not a promise of a promotion or an advancement the court ruled that the inducement was a factor that led to a modest increase in the notice period and provided Ferweda with 12 months.
Did Ferweda mitigate his losses?
A terminated employee has a duty to mitigate their losses and must take reasonable steps to secure employment elsewhere and to accept that employment should it be available. It is the defendant’s burden to show on a balance of probabilities that a plaintiff failed to mitigate their losses.
In this case, Celgar successfully proved that for the first five months post-termination Ferweda failed to make reasonable efforts to find alternative employment. However, Celgar also failed to provide any evidence that there was any equivalent job available for Ferweda to have been able to apply for and or secure during this five-month time frame post-termination. Because Celgar was unable to provide any evidence that such equivalent employment was available during this time, Celgar failed in their burden of proof.
Key takeaways/highlights
- Inducement includes but is not limited to, the method in which an employer seeks out a candidate for the advertised position. In this instance, the court noted that Ferweda did not reach out to Celgar; rather, the recruiter, hired by Celgar, had reached out to him with detailed information about the employment opportunity.
- Celgar was unable to prove Ferweda failed to mitigate his losses because it failed to be able to show that work could have indeed been found during the time frame Ferweda did, in fact, fail to search for alternative employment. Despite Ferweda’s actual failure to make reasonable efforts to find equivalent employment five months post-employment, Celgar failed to reach the burden of proof required.
Julia Brewster is a summer articling student at Roper Greyell LLP. She is interested in all areas of labour and employment law.
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