Wood v. Pattom Services Ltd. Date:, 2012 BCPC 223

Citation: Wood v. Pattom Services Ltd. Date: 20120703 2012 BCPC 0223 File No: 1139 Registry: Nakusp IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LOIS JEAN WOOD CLAIMANT AND: PATTOM SERVICES LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MROZINSKI Appearing for the Claimant: L. Wood Counsel for the Defendant: R. Sookorukoff Place of Hearing: Nakusp , B.C.

Date of Hearing: November 24, 2011, March 19, 2012 Date of Judgment: July 3, 2012 I. Introduction [ 1 ] In this small claims action, the plaintiff, Ms. Lois Jean Wood, seeks damages in the amount of $25,000.00 based on a claim for wrongful dismissal after sixteen years of employment with the defendant, Pattom Services Ltd. (“Pattom”). Immediately prior to what Ms. Wood alleges was her wrongful termination, she was employed as a Log Scaler in the Arrow Boundary Forest District (the “District”).

Her responsibilities included weighing and scaling logs trucked into her scaling site before those logs were deposited into Arrow Lakes and towed to the nearest saw mill or pulp mill. Her scaling data, which she reported out each day, was ultimately used by the Ministry of Forests to assess timber harvest volumes and of course stumpage values in the District. [ 2 ] The defendant, Pattom, is a company that provides scaling services through contracts with forest companies. At the material time, the bulk of Pattom’s contracting work was with Pope and Talbot, then a relatively large forest company.

Pattom provided scaling services at a number of sites owned by Pope and Talbot in the District. [ 3 ] On September 8, 2006, Ms. Wood was working at one such scaling site, known as “Needles”, when she reported being assaulted by a logging truck driver. The assault, and what Ms. Wood perceived to be Pattom’s insensitive reaction to it, caused her serious emotional distress. Ms. Wood took time off work, briefly collected worker’s compensation, and made a work place injury report resulting in some costs for Pattom. Ms.

Wood returned to work in late 2006 but was laid of on October 5, 2007, along with Pattom’s other employees when Pope and Talbot declared itself to be insolvent. [ 4 ] By October 2008, Ms. Wood had not been called back to work though, she maintains, there was work available. She alleges that she was not re-hired because of hard feelings arising out of her having reported the assault, and subsequently filing the workplace injury report. Ms. Wood claims damages for wrongful dismissal for a period of eight months from the date of her lay off on October 5, 2007, to June 6, 2008.

Though she calculates the amount owed to her to be in excess of $33,000.00, she has reduced her claim to $25,000.00, the maximum allowable claim limit under the Small Claims Act . In her Notice of Claim, Ms. Wood also sought severance pay in the amount of $8,880.00 but did not pursue that claim at trial. [ 5 ] Pattom denies that Ms. Wood was ever dismissed. It acknowledges that some scaling work did become available in the District after Ms. Wood was laid off in October 2007, but the work was not offered to her for several reasons. One such reason was that in June 2008, Ms.

Wood advised Pattom that she was going to participate in a funding program known as the Community Development Trust (“CDT”) – a fund created to assist senior forestry workers to transition into retirement. Pattom maintains that while Ms. Wood was still on lay off status, she accepted an offer of $60,000.00 from CDT and, in so doing, voluntarily resigned from her employment and waived any right to bring a claim arising out of her employment. [ 6 ] In the alternative, Pattom submits that even assuming Ms.

Wood was wrongfully dismissed, in law she had but two choices: She could either have brought a claim for wrongful dismissal or resigned – but not both. Pattom submits that as Ms. Wood chose to resign, it is not now open to her to sue for wrongful dismissal. II. The Legal Issues [ 7 ] The issues in this case are firstly whether Ms. Wood was dismissed without cause from her employment either before or after Pattom failed to call her back to work following her lay off. If so, it must be determined whether Ms. Wood’s acceptance of the CDT funding nonetheless precludes her from bringing this wrongful dismissal claim.

If not, the appropriate notice period must then be determined. III. The Facts and Evidence [ 8 ] Although in my view the question of Ms. Wood’s dismissal in this case is strictly a legal one having to do with her contract of employment, Ms. Wood argued strongly that her dismissal was inextricably linked to the events surrounding her assault. She led much evidence on this point but in the end sought no increased damages arising out of what she asserted was bad faith conduct on the part of her past employer. Ms.

Wood’s claim for damages relates entirely to what she considers to have been the appropriate notice period for her wrongful dismissal. [ 9 ] In the end, I have concluded that nothing about Ms. Wood’s dismissal turns on Pattom’s response, perceived or otherwise, to the assault. Nonetheless, as this was so critical to Ms. Wood’s case, I would be remiss if I did not review the evidence however briefly in these reasons. (

i) Ms. Wood’s terms of employment [ 10 ] I begin, however, where I must which is with a review of the evidence regarding Ms. Wood’s contract of employment. [ 11 ] There is scant evidence of the understanding of the parties at the time the employment relationship commenced. There is no written contract of employment. There was, however, a pattern that persisted through at least some of the years of Ms. Wood’s employment with Pattom and that is that from time to time, the company would lay its employees off and call them back to work. The other significant aspect of her contract of employment was that Ms. Wood, as with all of Pattom’s Scalers, worked at various sites in the District.

[ 12 ] When Pattom laid off its employees due to work availability associated with weather or forest fires for example, it never provided them with severance pay. Rather, employees were provided a “lay off slip” and could and often would collect Employment Insurance.

When these employees were “called back”, they were offered work at one of the scaling sites they had previously been assigned to, or on occasion, other sites. [ 13 ] In terms of the allocation of work sites, Pattom’s employment policy, articulated in various Memoranda entered as Exhibits 25 and 35 in this trial, provided generally that the assignment of work locations was a matter of the discretion of the employer and while no employee had an entitlement to any particular scaling site, Pattom would do what it could to keep all employees working.

Pattom’s employment policy dated May 4, 2007, provided also that each employee was expected to accept assignments in their area as established by past practice. [ 14 ] In Ms. Wood’s case, her established areas of work were listed as Snag Bay, Renata, Octopus, Needles, Stobo and Fosthall. An update of the policy also dated May 4, 2007, provided that as of that date new employees were expected to accept assignments in any scaling site serviced by Pattom from Shelter Bay to Castlegar. [ 15 ] Ms.

Wood took no issue with the proposition that it was a term of her employment contract with Pattom that the employer could exercise its discretion in assigning work at scale sites. She argued however that that discretion was typically exercised on the basis of a number of factors. On the evidence, it is clear and I find that the assignation of work sites was based on a number of factors including the proximity of the Scaler’s residence to the scale site, the basis of a Scaler’s performance, seniority at a particular site, work history at a particular site, and seniority overall. (ii) Ms.

Wood’s work place injury [ 16 ] On September 8, 2006, Ms. Wood was working at Needles, a scaling site located a relatively short distance from her home in Edgewood, British Columbia. On that day, Ms. Wood reported that a logging truck operator came into her scale shack and as her head was turned, slapped her on the side of her head and face so hard that she momentarily lost consciousness. The driver admitted only to tapping Ms. Wood on the shoulder. [ 17 ] Ms. Wood reported the assault to a co-worker but otherwise continued on with her work. The assault occurred on a Friday. By Monday Ms.

Wood was surprised to see the driver that had struck her back at her scale in Needles. She asked a co-worker and another trucker to stand by her but neither wanted to become involved. At that point, Ms. Wood phoned the police and reported the assault. She then took some time off work to recover from the assault, and what she perceived as her employer’s indifference to her plight. [ 18 ] On September 18, 2006, Ms. Wood made out a work place injury report to WorkSafe BC, and on September 20, 2006, completed an “Application for Compensation”. In the injury report, Ms.

Wood noted that after the assault she was told to take two weeks stress leave. She wrote that she saw a doctor on September 15, 2006, and went to the hospital on September 16, 2006. Ms. Wood complained at trial that Pattom took no steps to remove her assailant from her work site; rather, Pattom’s response she said was to remove her from Needles. [ 19 ] There is no evidence in this trial of the reasoning of WorkSafe BC but it is clear by the decision letter dated December 7, 2006, that Ms. Wood’s claim was allowed. By letter dated January 13, 2007, Mr.

Tom Zeleznik, the owner of Pattom, sought a review of the decision on the grounds that Ms. Wood’s assailant was not a Pattom employee, and that the claim itself was very confusing. He pointed out that Pattom had a safe record over the years and was having difficulty with WorkSafe’s conclusions. He added that Pattom would have kept the assailant away from Ms. Wood had she sought that particular accommodation. [ 20 ] Mr. Zeleznik’s request for a review of the December 7, 2006, decision of WorkSafe BC was denied with reasons dated May 9, 2007. The Review Board concluded that Ms.

Wood was assaulted when the driver struck her. It found that the assault arose in the context of Ms. Wood’s employment and that she was injured in the assault. It found also that Ms. Wood had suffered acute stress disorder and post traumatic stress disorder (“PTSD”) as a result of the assault. The Board did not revisit the question of Pattom’s increased worker’s compensation claim costs arising out of Ms. Wood’s successful claim. [ 21 ] After a short period of convalescence, Ms. Wood returned to work in late 2006 but she was not assigned to Needles. Rather, Ms.

Wood was assigned to work at the scaling sites at Octopus, Fosthall, and Snag Bay. Though all except Fosthall were relatively close to her home in Edgewood, Ms. Wood is convinced this was a retaliatory move aimed at punishing her for making the WorkSafe BC claim which cost Pattom. Nonetheless, Ms. Wood did accept these postings. In February, 2007, she asked to return to work at Needles. Mr.

Zeleznik replied in writing that she would have to obtain a letter from WorkSafe BC authorizing her return to the site since the driver who had been found by WorkSafe BC to have assaulted her would also be returning to Needles. Ms. Wood found this hurtful. She felt Pattom was favouring her assaulter while denying her the chance to return to Needles, her preferred scaling site. (iii) Ms. Wood’s lay off [ 22 ] Ms. Wood ultimately returned to Needles in late May, 2007, but not before demanding certain safety measures be put in place to segregate Scalers from logging truck drivers.

She worked at Needles until October, 2007, when she was posted to Renata, a scaling site located a considerable distance from her home in Edgewood as evidenced by the site map entered into this trial as Exhibit 34. Still, Ms.

Wood accepted the posting to Renata and worked there for approximately one week before she was laid off on October 5, 2007. (iv) Work available after the lay-off [ 23 ] After the lay off in October, 2007, scaling work did become available at some of Pope and Talbot’s scaling sites in November and December of 2007, and again in January and February of 2008 - including at Renata, Fosthall and Stobo. [ 24 ] In November, 2008, Mr. Zeleznik worked at both the Fosthall and Renata. Another employee, Mr. Tom Tatlock, worked at the Fosthall site in December 2007, and again in January and February, 2008. Mr.

Zeleznik’s evidence that Mr. Tatlock was senior to Ms. Wood was not contradicted.

[ 25 ] Mr. Doug Zeleznik, the son of Mr. Zeleznik, worked at Renata in December 2007, and at Stobo in January 2008. Pattom’s pay records show that in December 2007, Doug Zeleznik worked at Renata on two occasions: Once on December 1, and once on December 25, 2007. Mr. Tom Zeleznik testified that he had called Ms. Wood about working at Renata in December 2007 but could not reach her; rather, he was able only to leave a message on her answering machine. Mr. Zeleznik also testified that Doug Zeleznik had worked for him longer than Ms. Wood.

It is not clear on the evidence which of the two had put in more time at Renata and Stobo. Ms. Wood testified, and I accept, that she was ready and able to work at Stobo in January 2008. [ 26 ] Some of Pattom’s other Scalers were called back to work at sites that Ms. Wood had never worked. Ms. Tammy Evans was recalled to work at the Castlegar scaling site. Pattom’s records show the Ms. Evans regularly at Castlegar well before the lay off on October 5, 2007. Ms. Jean Carlson was recalled to work at Shelter Bay in December 2007, and again in January and February 2008. Pattom’s pay records show that Ms.

Carlson worked at Shelter Bay for most of the year 2007 except for an absence during the month of April. [ 27 ] Finally, as Ms. Wood pointed out, an employee clearly junior to her named Randy Koerman worked at Stobo in January 2008, and at Shelter Bay in February and August through December of 2008. (

v) BC Community Development Trust (“CDT”) [ 28 ] In March 2008, the Government of British Columbia, through its Ministry of Jobs, Tourism and Innovation, initiated a three year transition to retirement funding program entitled the “Community Development Trust” (CDT). The CDT offered workers in the forest industry financial assistance to transition to non-forestry related employment, or even retirement. The purpose of the CDT is outlined in the policy manual attached to the affidavit of Donna Brand, entered as Exhibit 33 in this trial.

As the introductory passage of the manual evidences, the CDT was designed to address the cyclical nature of the forest industry and in particular the significant job losses in the industry overall.

The objective of the CDT was to help senior forest workers transition out of the industry to “make room for more junior workers” provided the retirement of the senior worker would not leave a skills shortage for his or her current employer. [ 29 ] To be eligible, an applicant had to be at least age 55 on a certain date, meet the definition of a forestry worker, have worked for a set period of time in the forest industry, and have received at least 65% of overall income from the forest industry in the two years prior to his or her application. [ 30 ] The most important criteria for the grant of the CDT funding in this case are set out at

section 4.9 of the policy manual. That

section provides that an applicant must resign from his or her current employer and that a letter of resignation must be on file before payment is made. The resignation must have been voluntary, the employee must have been on indefinite lay off, and not have received severance. Finally, by accepting the payment, the applicant also had to agree not to return to work for the same employer for a period of 18 months from when they retired or else that individual would be required to return all of his or her funding. [ 31 ] By letter dated June 24, 2008, Ms. Wood wrote to Mr.

Zeleznik with a request that he fill out the CDT form letter to assist her in her application for CDT funding. She asked for her record of employment and for a declaration that at least 65% of her income over the past ten years was derived from employment in the forest industry. [ 32 ] By letter dated July 28, 2008, Mr. Zeleznik advised the program manager at the CDT that Ms. Wood had been in his employ for sixteen years but had been laid off, along with other employees, indefinitely due to the sale of Pope and Talbot. He advised that Ms.

Wood’s job loss was indefinite and involuntary but that she would not be receiving severance. He further advised that Ms. Wood’s retirement would not create a skills shortage for Pattom’s operations, but that it would create an opportunity for a junior worker currently on lay off from Pattom. [ 33 ] After receipt of Ms. Wood’s letter of June 24, 2008, neither she nor Mr. Zeleznik appear to have communicated with one another until October 2008. By that time, Pattom’s work was starting to pick up. By letter dated October 18, 2008, Ms. Wood advised Mr. Zeleznik that she had applied and been approved for CDT funding.

She then wrote as follows: I believe you thought I had resigned/retired after receipt of my June 24/08 letter requesting Community Development Trust form completions by you. Since that date, there have been local employment opportunities not offered to me. I am dating my resignation from Pattom, therefore, (sic) June 27, 2008. [ 34 ] Mr. Zeleznik responded by letter dated November 14, 2008, in which he stated that the first job opportunity was on August 28, 2008, at Shelter Bay, a site that Ms. Wood had not worked at before.

He further advised that an opening had come up at the Fosthall site on October 8, 2008, but that Pattom had been under the impression it could not offer it to her as she had applied for CDT funding earlier in June. [ 35 ] Ms. Wood’s agreement to accept CDT funding was evidenced in an acceptance letter dated and signed by her on July 19, 2008. Though she agreed to accept assistance in the amount of $60,000.00 to transition to retirement, she actually received only $55,000.00. In the letter, Ms. Wood acknowledged the following: 1.

I am accepting this payment in full and final satisfaction of any claims, statutory or otherwise, that may arise out of my employment and the termination of employment after signing this agreement. 2. I cannot be re-employed by the company or an affiliate of the company for a period of 18 months from the date of signing of this agreement unless I return 100% of the Transition to Retirement Assistance, plus interest at 18% per year, to the BC Community Development Trust. 3.

I acknowledge that by accepting this payment I relinquish any rights I may have for preferential hiring by the company or an affiliate of the company and that if, after 18 months, the company or affiliate of the company rehires me, it will be a new hire with no

formal or informal seniority. [36] Ms. Wood agreed that in order to obtain the CDT funding, she was required to sign this form letter and to agree to its terms. IV. Legal Analysis: Was Ms. Wood wrongfully or constructively dismissed [37] In both oral and written submissions, Ms.

Wood argued that her wrongful dismissal claim is based not only on Pattom’s failureto call her back to work from October 6, 2007 to October 8, 2008, though work was available, but also on its various changes to heremployment contract in May 2007 by allowing new employees more privileges over long term employees. [38] In either event, this court must determine firstly the terms of the contract of employment between Ms. Wood and Pattom; onlythen can it be determined whether Pattom breached or altered those terms as alleged. (

i) The Law regarding lay offs [39] The first question that must be asked is whether the lay off notice given Ms. Wood in the circumstances of this case constituteda wrongful dismissal, or to the contrary whether it was an implied term of her employment contract with Pattom, that she would be laidoff from time to time for an indefinite period: Collins v. Jim Pattison Industries Ltd., [1995] B.C.L.R. (3d) 13. [40] It is important, in my view, to begin the analysis by setting out the ground rules of any employment relationship at commonlaw. The following passage from the Reasons of McKay J. at p. 2 of Archibald v.

Doman-Marpole Transport Limited and DomanIndustries Ltd., [1983] B.C.J. No. 1284, which has been adopted in numerous cases in this jurisdiction, sets out the accepted view: There is nothing more fundamental to a contract of employment than that the employee be employed and that he be paid for his services.Doman unilaterally changed those fundamental terms.

One can appreciate the need for employers to cut down on management orsupervisory staff during economic downturns but the employee, subject to contractual arrangements, is still entitled to reasonable noticeor payment in lieu of notice. [41] As with all the subsequent cases, McKay J. agreed that the rule at common law could be modified by contractual arrangementsto the contrary. However, in the absence of an express or implied term of the contract of employment to the contrary, the rule is that alay off is no more than a dismissal from the contract of employment for which severance or notice is due.

In this case, as I have noted,Pattom had no express right to lay off Ms. Wood because there is no written contract of employment. As such, it has to be determined onthe evidence whether the contract of employment permitted Pattom to lay off Ms. Wood. [42] In Collin v. Jim Pattison Industries Ltd. (c.o.b. Jim Pattison Automotive Group), 1995 BCJ No. 1201, Sigurdson J. considered asimilar question regarding an implied term allowing the defendant in that case to lay off the plaintiff.

In determining whether theevidence supported such an implied term, Justice Sigurdson relied on the following passage from the reasons of Southin J. (as she then was) in Merilees v. Search Canada Inc. (1986), (BC SC), 24 B.C.L.R. (2nd) 165 at 169 as follows: If, at the time the contract of employment was made (which I take to be the relevant time for the implication of a term), these parties hadbeen asked, "Does the plaintiff have to work Sunday?" The answer from both would have been "No". As MacKinnon L.J. put in Shirlaw v. Southern Foundaries

(1926) Ltd., [1939] 2 All E.R. 113 at 124 (C.A.): For my part, I think that there is a test that may be at least as useful as such generalities [MacKinnon L.J. was referring to TheMoorcock]... Thus, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in theiragreement, they would testily suppress him with a common: "Oh, of course." At least it is true, I think, that, if a term were never impliedby a judge unless it could pass that test, he could not be held to be wrong.

In the case at bar, if the officious bystander had said to the parties "Should you not put in a term that Mrs. Merilees does not have towork on Sundays?", the parties would have suppressed him as MacKinnon L.J. suggested. [43] Justice Sigurdson determined that there was no implied term allowing the defendant to lay off the plaintiff Collins from time totime. In particular, there was no evidence of an industry wide practice to temporarily lay off employees, nor was there evidence that sucha practice was known to both parties. (ii) Ms.

Wood’s contract of employment [44] In this case, I have no difficulty finding also that seasonal lay offs were a common practice in the forest industry through muchof Ms. Wood’s time of employment with Pattom. However, the lay off in October 2007, differed from previous lay offs by Pattom inthat the bankruptcy of Pope and Talbot left employees even more uncertain about the length of the lay off period. Ms.

Wood appeared atleast initially to have accepted this lay off as she had done with previous lay offs on the understanding that, as had previously been thecase, she would be called back when work became available at one of the sites she had previously worked, or in accordance with herseniority. [45] As with all Pattom employees, Ms. Wood wanted to be rehired in accordance with her seniority, and she wanted to remain

working as a Scaler. She did not want her employment relationship severed with every downturn in the forest industry because these downturns, in her experience, were not lengthy. [ 46 ] Ms. Wood did not appear to have expected nor did she seek severance pay during any of the lay off periods. Rather, she expected as a term of her employment that she would be re-hired when work became available. In other words, if an officious bystander were nearby when Ms.

Pattom entered into her contract of employment with Pattom, that person would hear both agree that of course, each would expect a brief lay off for seasonal reasons. I do not think, however, that Ms. Wood would have heartily agreed to an indefinite layoff at the whim of her employer. [ 47 ] I find that it was a term of her employment that Ms.

Wood would be rehired to work at one of the scaling sites she had worked at historically when work was available, and that she would be rehired if at all possible before persons junior to her, or at least persons junior to her at one of these sites, were rehired. (iii) Did Pattom breach Ms. Wood’s contract of employment? [ 48 ] While Ms. Wood rightfully expected to be rehired once work became available at one of her established scaling sites, she could not have expected, as a term of her employment, to be rehired before either Mr. Tom Zeleznik or Mr. Tom Tatlock, both of whom I find were senior to her.

I find also that Ms. Wood was not entitled as a term of her employment to be rehired into such sites as Castlegar or Shelter Bay at the expense of Ms. Evans or Ms. Carlson, either of whom may well have been senior to her in any event. Both Ms. Evans and Ms. Carlson had routinely worked at Castlegar and Shelter Bay respectively and both would have expected, as a term of their employment, to be rehired at these sites before Ms. Wood. [ 49 ] There was, however, work at Shelter Bay that was made available not only to Ms. Carlson but also to Randy Koenman and Clem Gadbois throughout the summer and fall of 2008.

On balance, the evidence suggests that these gentlemen were junior to Ms. Wood and the only reason the work was not offered to her was that she had never worked at Shelter Bay. The wording of Pattom’s work assignment policy though vague, in conjunction with its long standing practice, meant that though Ms. Wood could and probably should have been offered this work, Pattom was not in breach of its contract of employment with her by not doing so. [ 50 ] This leaves Renata and Stobo. On the balance of the evidence, I am satisfied that Tom Zeleznik made an effort to offer Renata to Ms.

Wood in December 2007, but was unable to connect with her. As for Stobo, I agree with Ms. Wood that given her seniority and her work history at Stobo she should have been offered work at this site in January 2008. I find that at that point, Pattom breached its contract of employment with Ms. Wood and she was from that time wrongfully dismissed. [ 51 ] I find also in the event I am wrong about Stobo that the next work available for Ms. Wood in accordance with her terms of employment was in October 2008, when according to Pattom’s records, work became available at Fosthall.

This work should have been offered to her but was not as Mr. Zeleznik was under the impression that Ms. Wood could not be offered the work after having applied for CDT funding. This too constituted a fundamental breach of the employment contract in the event Ms. Wood was still employed with Pattom at the time. [ 52 ] In my view, Ms. Wood’s wrongful dismissal was a function of Pattom’s failure to comply with its contract of employment. I am unable, though I am sympathetic to Ms.

Wood’s emotional distress, to find that Pattom breached its employment contract with her because of hard feelings arising out of her having reported the assault. Though I might agree with Ms. Wood that Pattom could have reacted more sensitively and even constructively to the assault, I am unable to draw any line between Pattom’s response to her assault and what I find was a breach of the contract of employment. The evidence linking the two is in my view just too speculative. (iv) Was Ms. Wood constructively dismissed from her employment? [ 53 ] In regard to Ms.

Wood’s second strand of argument that Pattom changed her employment contract to favour junior workers, it is clear that as of May 4, 2007, Pattom had determined that all “new employees” would be employed in any of its scaling sites. These persons would not, unlike Pattom’s senior employees, be expected to accept assignments in particular sites. [ 54 ] This was obviously a new condition or term of employment for those “new employees” who would be required to accept assignments over a large area, but I am not convinced that this constituted a change in Ms.

Wood’s contract of employment such that she was constructively dismissed. [ 55 ] The condition that a Scaler is required to work at a particular site is implicit in the term of employment set out by Memorandum dated May 24, 2002, that “Employees will be employed on the basis of performance and specific Scalers in certain areas.” This wording was carried through subsequent Memoranda and appears in the May 4, 2007, update. The practice of Pattom and its Scalers was for certain Scalers to work at certain sites. The May 4, 2007, Memorandum changed or altered that practice for new employees: It did not alter Ms.

Wood’s contract of employment. [ 56 ] On the question whether Ms. Wood was wrongfully or constructively dismissed, I find that having failed to call Ms. Wood back to work in accordance with her contract of employment in January 2008, Pattom wrongfully terminated her employment. I do not find, for the reasons immediately above, that Ms. Wood has made out a claim for constructive dismissal going back to May 2007. V. The effect of Ms.

Wood’s acceptance of CDT funding [ 57 ] Typically, once it has been found that an employee has been wrongfully dismissed without severance, the question becomes what is the appropriate notice period. However, in this case, Ms. Wood entered into an agreement for CDT funding which Pattom submits vitiates her claim for damages for wrongful dismissal. I now turn to that issue. [ 58 ] By mid October 2008, Ms. Wood had decided to accept the CDT funding she had applied for in June of that year.

By letter dated October 19, 2008, she advised Pattom that she was accepting the CDT funding because although there had been local employment opportunities, she was offered no work. She decided to back date her resignation to June 27, 2008, for two reasons: First, because it

allowed her to get back to work in the forest sector sooner (given the 18 month rule), and secondly, because she hoped that by the time she was able to work again in forestry industry that Interfor would have purchased the assets of Pope and Talbot and she could scale directly for Interfor rather than work for Pattom. [ 59 ] When Ms. Wood chose the June 27, 2008, date, she had formed the view that Pattom had wrongly failed to offer her work that summer and instead offered it to persons junior to her. In effect, as of June 2008, Ms.

Wood had determined not to accept what she regarded as Pattom’s unilateral alteration of her terms of employment which was to favour junior employees over those having more seniority. Ms. Wood resigned and rather than sue for wrongful or constructive dismissal, opted instead to accept CDT funding. [ 60 ] I do not accept that the work offered at Shelter Bay to junior Scalers constituted an alteration of any term of Ms. Wood’s employment contract with Pattom. Nonetheless, I have found that Pattom had wrongfully dismissed Ms.

Wood after failing to offer her work at the Stobo site in January 2008, and should have offered her work at Fosthall in October before receiving her letter dated October 19, 2008. However, the fact remains that Ms. Wood accepted CDT funding instead of suing for wrongful dismissal. [ 61 ] The terms of that funding agreement have been set out above but one condition in particular bears repeating. In it, Ms.

Wood agreed that: I am accepting this payment in full and final satisfaction of any claims, statutory or otherwise, that may arise out of my employment and the termination of employment after signing this agreement. [ 62 ] I have already explained that the purpose of the CDT fund was to assist senior forestry workers to transition to other career areas, or into retirement. The CDT fund was made necessary because of significant job losses in the forest sector due to its cyclical nature, but it was also a key mechanism by which to make more room for younger workers in the industry. [ 63 ] To allow Ms.

Wood to bring this action for wrongful dismissal after she entered into the CDT agreement in which she expressly gave up any right to do so would be a retrograde step. [ 64 ] I do not accept that Ms. Wood failed to understand the legal implications of the CDT funding agreement. It is written clearly, in plain language, and the implications are obvious. Ms. Wood expressly waived her right to bring any claim arising out of her employment with Pattom in exchange for CDT funding. Having entered into that agreement, it is not now open to her to bring this claim for wrongful dismissal. [ 65 ] For these reasons, Ms.

Wood’s claim is dismissed with reasonable costs to the defendant Pattom in accordance with the Small Claims Rules . If the parties are unable to agree on those costs, they may set the matter down for hearing. ______________________________ The Honourable Judge L. Mrozinski