Memorandum to Counsel
Mr. Justice D.A. Hogarth


Counsel for Plaintiff Lawrence W. Coulter, Esq.
Counsel for Defendant Russell C. MacKay, Esq.
DATES OF TRIAL: January 14th and 15th, 1987

This is an action for wrongful dismissal in which the sole issue is the amount that should be awarded to the Plaintiff as a result of the termination of his employment by the Defendant without appropriate notice.

The Plaintiff was employed in the foundry of the Defendant as a labourer intermittently from 1973 to 1984, almost 9 years altogether. He was paid hourly and was subjected to frequent lay-offs as the available work dictated. He was a loyal and productive employee, somewhat limited in his ability to switch positions that required skills over and above that of a labourer, and markedly limited in his ability to understand English. When laid off on more than one occasion he obtained work elsewhere and is regularly employed with a sea food company. Hi is middle aged, his children have all grown up and he is apparently healthy.

During one long period while the Plaintiff was laid off the Defendant terminated his employment by a written notice, effective the day it was delivered, January 15th, 1983, but nonetheless the Plaintiff was re-hired a few months later and after further intermittent lay-offs was finally laid off in July 1984. No final notice of termination was ever delivered and it was not until long after the event he commenced his suit.

The Defendant is a small Company that engages in the casting of ductile iron. There are about fourteen employees in all and in recent years work has been sparse and there have been many lay-off periods. The Defendant could have given appropriate termination notice upon the occasion of any of the lay-offs and subsequently re-hired the Plaintiff without any severance pay at all, but to its regret failed to do so.

Counsel for the Plaintiff has suggested that treating the whole period as an aggregate of 8 years and 11 months, and the Plaintiff as a long term employee (see Krewenchuk v Lewis Construction Ltd. (1985) C.C.E.L. (206) the appropriate award should be six months wages in lieu of notice. Counsel for the Defendant disagrees and says that the intermittent periods of employment preclude treating the Plaintiff as such and in any event after the written termination was given the Plaintiff in January, 1983, the Plaintiff's acceptance of further employment was tantamount to a waiver of the Defendant's reputation of the contract and thus the period in question should be only for the few months he was thereafter engaged. Counsel has cited Schellenberg v. Marzen Artistic Aluminum Vancouver Registry #C836999, May 17th 1985, unreported, as authority for this proposition.

I do not agree with the contention of the Defendant with respect to the waiver of breach. The contract was at an end at the time so far as both parties were concerned and it would be unequitable to permit the Defendant to take advantage of his own breach of it, unless the Plaintiff had waived the breach in no uncertain terms as a condition of his rehiring.

On the question of damages, considering the many authorities that have been referred to and particularly the decision of the Chief Justice in Ansari et al v B.C. Hydro Vancouver Registry #C850821-22-23 and 25 April 3rd 1986, unreported, I am of the view that the Plaintiff was a long term employee, at least in the broadest sense, and payment of three months wages in lieu of notice amount to a total of $6,300 would be adequate in the circumstance, taking into consideration the work he obtained while laid off.

Judgment accordingly with Court Ordered Interest from July 1984 with costs.

New Westminster
January 21, 1987


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