The Rural Voice, 1998-05, Page 18Agrilaw
Dismissal of the farm employee
By Andrew Camman, LLB
The law of dismissal applies to
farm employees just as it does to other
industrial employees. It may come as
a surprise that farm employees may be
terminated without a reason just as
industrial employees can be
terminated. The restriction is that the
dismissal cannot be motivated by race,
creed, colour, religion, or any other
human right protected by legislation.
Terminations that are without a
specific reason are said to be without
"just cause". If you do not have a
"just cause" for the dismissal, you
must provide reasonable notice to
allow the employee to find altemative
employment. To avoid the terminated
employee's negative influence on your
workplace, (terminated employees are
not happy employees), you can pay
the equivalent in wages in Lieu of
notice.
Reasonable notice
Reasonable notice is intended to
put the employee into the same
position the employee would have
been in if there had not been a
dismissal. In other words, compensate
for the loss in wages while the
employee attempts to find work at
another farm. Reasonable notice is the
period of time objectively necessary to
find similar replacement employment.
Where there is no written employment
contract to calculate notice it is
inferred by examining various factors
such as type of employment, length of
service, age, availability of similar
employment and factors including the
general economy or the employee's
failure to look for other work.
The "rule of thumb"
There is a short cut to determining
reasonable notice for the lay -person.
The courts award damages in most
cases of wrongful dismissal within a
range of two weeks to one month
notice for each year of service. The
courts also tend to cap the total notice
at 18 to 24 months in all but the most
unusual of cases.
The employee who works as a bag -
boy at the local grocery store will
likely be limited to two weeks notice
per year of service because re-employ-
ment opportunities are readily avail-
able. By contrast the nuclear chemist
whose education and very narrow
14 THE RURAL VOICE
specialization creates limited re-em-
ployment opportunities will be afford-
ed greater notice per year of service.
There is a "glass floor" of three
months damages and a "glass ceiling"
of one year.
These ceilings
merely describe
the parameters
of the court's
proclivities
when deter-
mining notice.
The "rule of
thumb" derives
from a pattern
found in the
case law but is
not by itself "the
law". The peculiar characteristics of
individual cases may dictate deviation
from the "rule".
Mitigation of damages
The law of contract requires
litigants to help themselves before a
remedy is pursued by court
intervention. The employee must
actively seek replacement employment
or lose entitlement to damages.
Mental distress
Damages for mental distress are
awarded in cases where the distress is
caused by the lack of reasonable
notice and not from the act of
termination itself. It may also derive
from the method of termination.
However, mental distress is not
derived from the hurt feelings caused
by job loss. Everyone feels hurt by a
termination but damages for mental
distress have been awarded against
those employers that have acted
wantonly, callously and without
compassion when terminating an
employee.
Punitive damages
In employment law damages are
awarded to compensate, not to punish.
In a few special circumstances
punitive damages have been awarded
where the employer's actions in
dismissal are so reprehensible that
they require punishment by the court
to generally deter similar behaviour.
Even the dismissal of a bad employee
might be subject to punitive damages
if it is done in such a callous and
wanton manner it appears that the
employer was attempting to humiliate
Dismissal
rules protect
employees,
employers
the employee. A recent Supreme
Court of Canada decision has come
down very hard on an employer that
persisted in litigation and untrue
accusations against an employee.
Ultimately increased damages were
awarded to the aggrieved employee.
Understanding employment
insurance
Employment Insurance legislation
requires that there be repayment of
benefits paid where they overlap the
period of notice either after settlement
or after trial. Repayment of
Employment Insurance is necessary to
complete the litigation process and the
settlement of the action will
sometimes hinge on the employee's
failure to appreciate that. There are no
solutions to the problem beyond
identifying it early and making sure
that the employee's lawyer
understands. If this waits until late in
the litigation process, the employee's
refund of benefits will diminish the
amount that will get into the
employee's pocket and this will
become a disincentive to settling.
Dismissal of the farm employee
It is not necessary to have a "just
cause" reason to dismiss a good
employee. In tough economic times,
many farmers are faced with this
unhappy task. Often, letting a farm
employee go means that the
employee's family will be uprooted
from their home on the farm premises.
Just like any other residential tenant,
there are laws that restrict eviction. In
any event, evictions can be nasty and
anything that can be done to minimize
the trauma of that ordeal is at its worst
a good business decision and the best
way to minimize the risk of expensive
litigation.0
Agrilaw is a syndicated column
produced by the full service London
law firm of Cohen Highley Vogel and
Dawson. Paul G. Vogel, an associate
in the firm, practises in the area of
commercial litigation. Agrilaw is
intended to provide information to
farmers on subjects of interest and
importance. The opinions expressed
are not intended as legal advice.
Before acting on any information
contained in Agrilaw, readers should
obtain legal advice with respect to
their own particular circumstances.