Jennifer Cottrill worked as a skin care therapist for 11 years.  She was a single mom who was terminated when she was 32 years old.

The Plaintiff signed an employment contract that limited her notice period to that under the Employment Standards Act, namely 8 weeks’ severance.

The Defendant argued it had just cause to terminate Ms. Cottrill due to her incompetence.  The court held that there was no just cause for termination.  The employer unreasonably sought to hold the plaintiff to performance standards it had not previously required.  It found the evidence of the employer to be vague allegations that the plaintiff was complacent and had a poor attitude.   Among other things there had not been sufficient warnings or an explanation as to why her attitude was deficient.

The employer argued that it had given 3 months’ notice but the court rejected that argument and held that notice was deficient as it was not unequivocal.  However the court held that her damages were in any event limited to the employment contract, namely 8 weeks’ severance pay under the E S Act.  The court rejected the plaintiff’s argument that the contract was signed after the plaintiff had started work and therefore failed for lack of legal consideration.  The case provides a thorough examination of the law in this area of employment contracts.

Finally the court awarded $15,000 for aggravated damages.  The court found that the employer had terminated the employee unfairly.  She had been given a warning letter and had been promised that if her employment improved in 2 of the 3 months she could retain her position.  However, having done just that she was still terminated.  The employer had breached its duty of good faith in the manner in which they dismissed the plaintiff.  The termination and actions of the employer had a profound impact on the employee.  The court held:

[137]      […] I am satisfied that the lack of good faith and unfairness exhibited by the company in the manner of dismissal caused emotional distress to the plaintiff that was well beyond the distress from the fact of the dismissal.

Finally the court rejected the claim for punitive damages.  It held that the conduct of the employer was not “harsh, vindictive, reprehensible and malicious”.  Further there was no additional misconduct by the employer distinct from the misconduct that gave rise to the aggravated damage award.

Although the plaintiff was partially successful one has to wonder if it was all worthwhile given the costs and stress of a 6 day trial and the public exposure of the work place issues that led to her dismissal.  At the same time the employer might have considered simply terminating her without cause in a fair manner and simply relied on the written contract.

June 9, 2017

Cottrill v. Utopia Day Spas and Salons Ltd. 2017 BCSC 704

 

Michael Weiler practices employment and labour law including human rights and prevention of workplace harassment/bullying and independent investigations; advising on the practical and legal issues affecting private family-owned businesses; and more – see his website at www.WeilerLaw.ca .  Michael is a frequent seminar presenter and the assistant editor of Canadian Cases on Employment Law.  Michael can be contacted at mweiler@weilerlaw.ca  . For those who wish to receive articles, seminar notices and blog comments please contact Carolyn Weiler at cweiler@weilerlaw.ca  or call her at 604 336 7427.

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