A former Staples Canada saleswoman who rejected her employer’s severance package was awarded six months compensation in lieu of notice in a wrongful dismissal action against the retailer.
On May 30, Justice Paul Perell awarded her six months salary, or $34,171.
Summerfield’s lawyer David Ertl of Ertl Lilly LLP says he proposed the summary judgment motion when they commenced litigation.
“For cases that are streamlined and there’s no disagreement as to the real Bardal factors, it works well and you can probably get to a motion for summary judgment date somewhere between six and eight months post filing the claim,” he says. “We’re starting to use this more and more with clients.”
Ertl said it was the same strategy he used in Drysdale v. Panasonic Canada Inc. in which an employer argued Drysdale, a warehouse worker, was not management and therefore was entitled to lesser overall severance. The court awarded him 22 months’ notice.
In the last 18 months, Ertl says he has found employers are “taking a more hardline stance” at the early stages, and fewer matters are settling on the basis of a demand letter.
“Employers are saying, ‘If you want to squeeze more money out of us you’re going to have to claim.’ Maybe they are putting a line in the sand or waiting to see if the employee mitigates,” says Ertl. “Keep in mind it’s not the norm that these files get adjudicated. Less than one per cent of wrongful dismissal matters ever go to some kind of adjudication. This is a case where the employer took issue with the employee’s mitigation efforts and wouldn’t let go.”
He says this case demonstrates that an employer can’t expect to win on the issue of mitigation by simply “nit-picking” the employee’s efforts.
“There was no way the employer was going to win on mitigation; I tend to put a great deal of work into helping my client mitigate,” he says. “The employer did argue at the motion that the notice period was three to five months and because of the failure to mitigate they took the position they owed her zero. So we were fighting for all of it.”
Summerfield’s annual salary including benefits was $83,901 ($6,991.83 a month) when she was terminated without cause after almost five years on the job as an enterprise account manager — a sales role that required her to sell office supplies and furniture to multi-national companies. She was not in a managerial position.
When she was let go in November 2015, Summerfield was 39 years old and had no written employment agreement. She was offered a severance package, the terms of which were not disclosed to the court, and which she rejected.
Instead, she took the five weeks of termination pay required under the Employment Standards Act, and five weeks of benefits, and started to look for a job.
Since November, Summerfield tried to find employment by networking, speaking to recruiters, and applying for about 25 jobs — and getting several interviews — up to March 30, but she remained unemployed.
As Justice Paul Perell pointed out: “. . . Ms. Summerfield made an exemplary effort to mitigate. She started almost immediately to search for a new job and she assiduously continued with that effort in an organized and diligent way. Staples failed to meet the onus of proving a failure to mitigate.”
The only issue in the case was the length of the reasonable notice period.
“The parties agreed on the general principles but disagreed on their application to the circumstances of the immediate case although, even here, the gap between the parties was only one month. Be that as it may, my own analysis of the various factors and Ms. Summerfield’s particular circumstances is that the appropriate reasonable notice period is six months and, as noted above, as a factual matter, there has been no failure to mitigate,” said Perell.