Here, the plaintiff is the fired employee Mr. Bilbo Baggins and the defendant is Orc Industries. This memorandum presumes that Mr. Baggins wants to bring a case of “wrongful dismissal” against Orc Industries and in such a scenario; this paper gives the likely outcome of the case. This junior counsel feels that the following may be important.
1. Saskatchewan provincial laws shall be applicable. In Canada, laws differ slightly from province to province.
2. Bilbo’s tenure with Orc industries is not even 6 months old.
3. Before joining Orc Industries, Bilbo had been self-employed in the same line.
Here, the relevant law is the “Wrongful dismissal law” Let us take a brief look at the facts of the case.
Bilbo had a good idea about the helmet making industry, as he was managing one himself. The Orc Industries were starting out with some problems.
In May 2007, Orc Industries fired Bilbo for dishonesty and coming to work drunk. As regards evidence, nothing could be shown except for an empty bottle of Shire whiskey.
The first ground is Lack of Notice. It is essential that a notice is served to the employee telling him about the proposed firing and in the absence of this notice, the firing becomes illegal. Even if Bilbo had merely acted on a verbal contract, then too the condition of notice will be there as the same is implied. The company had violated the contract by firing Bilbo without a notice.( Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362 where the Supreme Court ruled that giving suitable notice to an employee was an implied condition.(Neumann and Sack,2012).
Even if the charges against Bilbo are proved true, then too the notice factor also may be applicable. However, from the evidence on show, Orc Industries will not be able to prove their allegations. The onus will be on the employers to prove that Bilbo had been guilty of the incidents alleged, i.e. cheating and coming to office drunk
Considering that no notice before termination was in Bilbo’s verbal contract with the Orc Industries, which is the worst condition, the least notice time of four weeks will be applicable here. This is as per clause 401c of the employment act.(Machtinger Vs. HOJ industries Limited 1992 (SCR 896); Bilbo will be eligible to receive four week’s pay at the minimum from Orc Industries.
Other damages receivable by Bilbo will also include punitive damages caused by mental stress on Bilbo by the employer’s taking liberties and terminating him without issue of notice. It is apparent to anyone that Orc Industries just wanted to use Bilbo’s skill which they did not have themselves, and tried to fire him as soon as his requirement was over. Bilbo’s very unfair dismissal will result in pay and punitive damages on two accounts
(1) Damages caused due to his mental distress which prevented him from searching for new jobs
(2) Damages, which will be harmful in the future as Orc Industries wanted to malign his character by putting false allegations on him in a deliberate character assassination attempt.
In a somewhat related case in the same province when an employee had been fired for actually drinking on duty, A Saskatchewan judge had awarded 12 months’ salary in lieu of notice to the employee. (Dreger v. Federated Co-operatives Ltd., 2004 SKQB 61 (CanLII), Saskatchewan Court of Queen’s Bench, February 20, 2004 ) (MacFarlane, 2008)
As there is every evidence to prove that Bilbo acted on behalf of his employer on “ good faith and fidelity” vide Canada’s employment law, Bilbo should be awarded a minimum of salary for 18 months taking all damages including punitive into consideration.
References:
Block, Richard N. Roberts, Karen Clarke, Ronald O., 2003, Labor Standards in the United States and Canada, W. E. Upjohn Institute for Employment Research, MI, USA.
Macfarlane, J,2008, New Lawyer (The): How Settlement is Transforming the Practice of Law, UBC Press, Vancouver, British Columbia, CAN
Neumann P & Sack.J; 07/03/2012, Employee Remedies:Part III and Obligations of Employees ; Part IV in “ e-text on Wrongful Dismissal and Employment Law”’ Canadian Legal Information Institute; Accessed on 16/7 ,URL
