Donald Maurice Duguay - v. -, 2010 SKPC 183

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2010 SKPC 183 Date: December 30, 2010 File: SC# 85 of 2009 (SC# 50 of 2008) Location: Saskatoon (Melfort) _____________________________________________________________________________ Between: Donald Maurice Duguay - and - Mudjatik Thyssen Mining Joint Venture, Thyssen Mining Construction of Canada Ltd. and Mudjatik Enterprises Inc. Mr. Mel Annand Counsel for the Plaintiff Mr. Christopher G. Veeman Counsel for the Defendants _____________________________________________________________________________ JUDGMENT D.C.

SCOTT , J _____________________________________________________________________________ Introduction [ 1 ] Mudjatik Thyssen Mining Joint Venture is comprised of Thyssen Mining Construction of Canada Ltd. and Mudjatik Enterprises Inc. All three are named as defendants. They carry on business as a mining contractor, providing services at mine sites in northern Saskatchewan. They will collectively be referred to throughout this judgment as “the defendant.”

[ 2 ] The plaintiff Donald Maurice Duguay was employed by the defendant between November 19, 2007 and October 31, 2008. He claims he was dismissed without notice and without cause. The plaintiff claims his damages exceed $20,000, the monetary jurisdiction of this Court. He waives the excess. [ 3 ] The defendant asserts that on November 2, 2008, the plaintiff resigned his employment with the defendant. Alternatively, the defendant states it had sufficient cause for terminating the plaintiff due to his insubordination. It is the defendant’s position that all wages owing have been paid to the plaintiff.

Background [ 4 ] At the relevant time, the plaintiff was 43 years of age and had 20 years’ experience as a miner. Prior to his employment with the defendant, he had been employed by a company in northern Ontario from which he was laid off. [ 5 ] The plaintiff sent his resume to the defendant. The covering letter to the plaintiff’s resume indicates at the time of his application he had 19 years’ experience in the mining industry and that he possessed exceptional blasting and production skills in both open pit and underground mining.

In particular, he had experience as a driller and blaster, and in long-hole blasting and cable bolting.

His resume listed the machinery he operated; no mention is made of a jackleg and stopper or of rock bolting. [ 6 ] John Hovdebo, a manager for the defendant, conducted a telephone interview and offered the plaintiff a job in October 2007 to work at Cameco’s Eagle Point Project, Rabbit Lake Mine in northern Saskatchewan. [ 7 ] The defendant maintained a four-tier pay scale, consisting of Miner trainee, Miner 3 (entry level), Miner 2 and Miner 1, being the highest classification of miner, paid at the rate of $22 per hour plus a bonus.

The bonus was to be related to production, safety and quality of the uranium. [ 8 ] There are differences in the types of duties performed by miners—some are related to development of the mine and others related to production. The plaintiff’s experience was primarily in the area of production. In that capacity he worked as a driller, operating a Cubex [1] drill. Such a drill is built like a small bulldozer; it is operated by a control panel and “walks” on its own. It drills in all directions, but is primarily used to drill vertical holes in a downward direction to a depth of 15 to 30 metres.

Operating such a drill requires a good deal of ‘on the job’ training. [ 9 ] The plaintiff testified he was asked during his phone interview on October 29 whether he could operate a jackleg and stopper drill, which is used primarily for development rather than production. Such a device is a heavy, hand-held air pneumatic drill, made of steel. Bolters use the jackleg and stopper to drill holes into the roof of underground excavations. They apply resin and rebar to support the ground for miners. Bolting is done to protect miners by preventing the roof or rocks from caving in.

The plaintiff was not trained for and did not want to do this work and he informed Hovdebo of this when he was hired. According to the plaintiff, using the jackleg and stopper is the most dangerous job underground. [ 10 ] Upon his arrival at the mine site, the plaintiff was provided with terms and conditions of employment (ex P6). Among other things, the document provides the following with respect to duties: It is understood and agreed that the employee will undertake all duties as directed by “the company”, which are within the limits of their skill, competence and in accordance with safe working practices.

It is further agreed that the employee will undertake all training necessary for the performance of their work and will assist in the training of other employees when necessary.

The employee…shall perform his/her duties to the best of his/her skill and ability and shall perform such work as may be required of him/her by “the company”, under and subject to the company’s instruction, direction and control. [ 11 ] The plaintiff was required to sign the document, acknowledging he had read and accepted it.

The plaintiff understood he was hired as a Cubex operator and that these provisions applied within the scope of that position. [ 12 ] The defendant maintained a record of employee information, which included a training history and disciplinary actions taken in respect of each employee (ex P7). The document with respect to the plaintiff indicated that he had completed a number of training activities, including mechanized rock bolting training on November 23, 2007. Training module #5 (ex P17) indicated the plaintiff had knowledge of, but had received no training in rock bolting.

The plaintiff explained every miner has a general knowledge of what rock bolting is; that does not qualify someone to work as a bolter. Defendant’s Disciplinary Procedures [ 13 ] The defendant adopted a set of rules and standards that employees were expected to follow. Failure to follow the rules and standards would result in disciplinary action. [ 14 ] The disciplinary procedure involved a four-step process with sanctions attached to each step. Step I involved a reprimand for failure to adhere to rules and standards.

Step II involved a reprimand and loss of two days’ bonus for failure to adhere to rules and standards a second time or for a more serious infraction than Step I. Step III involved reprimand and loss of seven days’ bonus for failure to adhere to rules and standards a third time or for a more serious infraction than Step II. Failure to adhere to rules and standards a fourth time or for more serious infractions than Step III would invoke Step IV of the process and would result in immediate termination and loss of all bonuses.

The procedure provides for removal of a reprimand after expiration of certain periods of time without further infraction. [ 15 ] Guidelines are provided to employees with respect to the infraction of rules and standards. Insubordination is identified as an infraction under Step IV. History of discipline October 6, 2008 – Stope guarding incident [ 16 ] A stope is an excavation in a mine to facilitate the extraction of ore. The plaintiff and a partner were assigned to load holes within the stopes with explosives.

The plaintiff placed “danger” signs and roped off an area to give notice to others that the holes are loaded with explosives. A dispute arose between the plaintiff and his supervisor Billy Ross as to why no human guard had been placed at the site. The plaintiff believed only a fence was needed when loading the holes with explosives and that a human guard was used only when blasting. [ 17 ] The plaintiff suggested resolving this problem when he got to the surface. Hovdebo and Ross were waiting for him with a warning slip for being insubordinate.

[ 18 ] A copy of section 260(1) of The Mines Regulations [2] pursuant to The Occupational Health and Safety Act [3] was given to the plaintiff, which requires the “effective guarding of entrances to the blasting site to prevent entry of unauthorized persons” but Hovdebo and the plaintiff disagreed on what that meant.

The defendant also had implemented policies regarding safe blasting underground (ex P9) and procedures for guarding the stope (ex P10), which require one person to stand guard. [ 19 ] The plaintiff testified he had been drilling and blasting for approximately 11 months by this time and the matter of placing of a guard at the site had never been raised with him before. According to Hovdebo, the policies had always been in place and were routinely communicated to employees during safety meetings. [ 20 ] The plaintiff was asked to sign the Step I warning, but he refused.

According to the plaintiff, Hovdebo originally told him they would overlook the warning slip and that he was not required to sign it. Hovdebo denied agreeing not to give a formal warning for this incident. He testified that he told the plaintiff this was a safety issue and his failure to follow directions to post a guard amounted to insubordination. Hovdebo testified he informed the plaintiff if he was insubordinate again, he would be terminated.

November 1, 2008 – Accident with front-end loader [ 21 ] On this occasion, the plaintiff was operating a front-end loader with a scoop which held electricians in a flooded area of the mine. The scoop accidentally rolled into the water and the electricians were dumped into the water, along with a pump. There was property damage and the potential for injury. [ 22 ] The plaintiff provided a statement and accepted responsibility for this situation. He signed the warning statement and agreed to it. According to the defendant, this was a Step II warning.

The plaintiff agreed that this was a serious incident, though not “major” as indicated by the defendant. He lost 2 days’ bonus for this infraction because it occurred within 90 days of the first warning. November 2, 2008 – Alleged refusal to rock bolt [ 23 ] On the date of the plaintiff’s termination, he was asked to undertake jackleg and stopper training.

He did not think he ought to be required to do this training because it was not part of the job of a Cubex operator. [ 24 ] The plaintiff was sent by his supervisor Doug Osman to perform rock bolting with another miner, Travis who was trained to use the jackleg and stopper. The plaintiff had not been asked to perform this work before and was given no explanation as to why he was being asked to do so. Travis was surprised to see the plaintiff and told him to stay out of the way and to pass gear as needed.

The plaintiff had worked approximately 3 to 4 hours of his shift when Osman arrived and asked why the plaintiff was not bolting. Osman told the plaintiff he was going to be trained as a bolter; the plaintiff responded he did not want to be trained as a bolter and that he was a Cubex driller. Osman became angry and fired the plaintiff on the spot. The plaintiff responded “fine”. [ 25 ] The plaintiff denies he was ever told by Osman that if he did not take bolter training he would be fired.

He says he received no such warning from any person at any time. [ 26 ] According to the plaintiff, the previous evening, Osman had asked the plaintiff how he could have 20 years’ experience and work as a Miner 1 without being a rock bolter. The plaintiff’s response was that his previous employer used mechanized bolters. The plaintiff also testified that he told Osman at that time he did not want the training as he did not want to be a bolter.

According to the plaintiff, Osman told the plaintiff he would be trained as a bolter, but no information was provided to the plaintiff as to when and how this would be done.

[27] The next day the plaintiff was assigned to do bolting. The plaintiff went with Travis, and was on the scissor, but he did notactually rock bolt. [28] The plaintiff testified he liked work generally and wanted to remain in the defendant’s employ. He was shocked by whathappened and believed he had been set up to be fired. He felt he had been singled out by Osman to be terminated. [29] Osman did not testify. Hovdebo testified that it was Osman who actually fired the plaintiff and that as the plaintiff’ssupervisor he had the authority to do so. Hovdebo prepared the formal paperwork on November 2, 2008.

According to Hovdebo, theplaintiff’s employment was terminated because he failed to follow the direct orders of his supervisor. Hovdebo testified the plaintiff said“I won’t bolt now or ever.” Hovdebo said that had the plaintiff changed his mind and agreed to take the training, he could have beenreinstated, but that did not happen. The Step IV warning indicated “insubordination – Donald refused to do his assigned duties from hissupervisor.” The plaintiff once again refused to sign the warning. [30] Hovdebo moved directly from Step II to Step IV.

He explained that according to the discipline procedure he could haveterminated the plaintiff at Step I for insubordination. He said the plaintiff was warned after Step I that if he was insubordinate again hewould be terminated. It was Hovdebo’s opinion that refusal to rock bolt was so serious that it warranted a Step IV termination. Issues 1. Did the plaintiff resign? 2. Did the defendant have just cause for dismissing the plaintiff? 3. If not, what notice of termination ought the plaintiff to have been given and to what damages is the plaintiff entitled?

Analysis [31] This Court finds that the plaintiff’s comment “fine” when he was told he was fired by Osman, did not amount to aresignation. According to the plaintiff, the exchange with Osman was somewhat heated. The plaintiff’s comment cannot be taken as aformal act of quitting his job. [32] The Court finds the defendant terminated the plaintiff’s employment. The question is whether the termination was for cause. [33] It is well established that the employer has the burden of establishing it had just cause for dismissal (Gabriel v. Cargill Ltd.-Cargill ltée, 2003 SKQB 457 , [2004] 9 W.W.R. 140 (Sask.

Q.B.) para. 17). [34] In McKinley v. B.C. Tel, [2001] 9 S.C.R. 161, the Supreme Court of Canada applied a contextual analysis and the principle ofproportionality to determine whether there was just cause for dismissal, as follows: 1. Determine the nature and extent of the misconduct; 2.

Consider the surrounding circumstances, including the employee within the employment relationship, the employee’s age,employment history, seniority, role and responsibilities, the employer’s business or activity, relevant employer policies and practices, theemployee’s position within the organization, and the degree of trust reposed in the employee;

3. Consider proportionality by deciding if the misconduct is reconcilable with sustaining the employment relationship, considering theproven acts of misconduct, within the employment context, to determine if the misconduct is sufficiently serious that it would give riseto a breakdown in the employment relationship. (Dowling v. Ontario (Workplace Safety and Insurance Board), (ON CA), [2004] O.J. No. 4812 (C.A.)). [35] Although McKinley was concerned with an employee’s dishonesty, the approach taken by the Court in that case is applicableto a broad range of employee misconduct (Bonneville v.

Unisource Canada Inc., 2002 SKQB 304 , [2002] 10 W.W.R. 509(Sask. Q.B.) para. 32). 1. Nature and Extent of Misconduct [36] The defendant relies upon three acts of alleged misconduct to justify its termination of the plaintiff. [37] There is no dispute with respect to the warning on November 1, regarding the accident with the front-end loader, although thisact of misconduct is of a different nature than the others. [38] The primary reason for the dismissal, according to the defendant, is the plaintiff’s alleged insubordination.

Insubordination isa condition of being insubordinate, resistant or defiant of authority, or disobedient (Mattson v. A.C.L. Airlift Canada Inc., [1993] B.C.J.2605 (S.C.)). To constitute wilful disobedience, the defendant must establish there were deliberate acts by the employee carried out “indefiance of clear and unequivocal instructions of a superior or refusal to carry out policies or procedures well-known by the employee asnecessary in the fulfillment of the employer’s objectives” (Heyes v. First City Trust Co., [1981] B.C.J.

No. 1529 (S.C.)). [39] On October 6, the plaintiff refused to follow his supervisor’s direction to place a human guard at the stope. The plaintiff didnot believe it was necessary and questioned the defendant’s

interpretation of the regulations. However, the defendant also had in placeprocedures which required a human guard. While he may have done things differently in his previous job, it was not open to the plaintiffto question or attempt to change, on site, the defendant’s procedures. Hovdebo stated that in the mining business, as a matter of safety, itis absolutely necessary to follow instructions. While the plaintiff refused to sign the warning, the Court finds this was insubordinationand

an act of misconduct. [40] The plaintiff argues there is insufficient evidence that he was insubordinate on November 2. The onus is on the defendant toprove the insubordination. However, Osman, the supervisor who fired the plaintiff, did not testify. The Court is left with the plaintiff’stestimony about what happened at the time of firing. The Step IV warning indicates the plaintiff refused to follow Osman’s orders. [41] The plaintiff was told by Osman that he would be trained to do rock bolting.

The plaintiff accompanied Travis as directed, didwhat Travis told him to do, was 3 to 4 hours into his shift when Osman came along and asked why he was not rock bolting. The plaintiffstated he did not want to be trained as a rock bolter, stating he was a Cubex operator. He was then fired. [42] Hovdebo heard the plaintiff say he would not perform rock bolting, “now or ever.” The plaintiff did not dispute that he hadno intention of rock bolting, because it was hard, heavy and dangerous work. [43] It is the plaintiff’s position that he was not hired to do rock bolting.

There was nothing in his resume which indicated he hadrock bolting experience. The plaintiff testified that in his telephone call with Hovdebo, at the time of the offer of employment, he

indicated he would not do rock bolting. This was important to the plaintiff. The plaintiff testified he would not have taken the job if he had been informed that doing this type of work was essential. [ 44 ] Hovdebo acknowledged that the plaintiff had an extensive list of skills on his resume but that it did not specifically list experience rock bolting. The plaintiff was hired for his extensive set of skills and because he appeared to be a well-rounded miner. [ 45 ] Relying on Poliquin v.

Devon Canada Corporation , 2009 ABCA 216 , the defendant argues the plaintiff was bound by the signed terms and conditions with respect to duties. According to Hovdebo, it is important to have a versatile and multi-functional staff. A miner is required to do whatever is asked of him.

Surely that requirement must be limited to the scope of the employee’s job, training and experience and must not exceed what is safe in the circumstances. [ 46 ] The plaintiff’s job is described on his employee information form (ex P7) and on his employment authorization (ex P5) as “Cubex Operator”, although the plaintiff did perform a variety of production duties. Hovdebo acknowledged that at the time the plaintiff was hired, the defendant was looking for someone with Cubex drilling experience.

Peter Lysohirka, the plaintiff’s supervisor until October 2008 testified that everyone at the mine was hired for a specific task. He testified it was the plaintiff’s job to do Cubex drilling, cable bolting, nipping (moving gear underground), hauling explosives and clean-up jobs. However, Lysohirka acknowledged that rock bolting was an important and useful skill for a miner to have. [ 47 ] The Court finds that the plaintiff was hired primarily to operate the Cubex drill and to perform associated production duties. He performed only duties associated with production for the better part of one year.

Had the defendant expected him to perform other duties, it ought to have made that clear at the time of hiring. If at some point the defendant thought it appropriate for the plaintiff to perform rock bolting duties, it ought to have renegotiated the terms of employment with the plaintiff and provided ample opportunity for training, rather than suddenly ordering him to do so. [ 48 ] The duties provision of the terms and conditions could have been interpreted, as the plaintiff had, to apply all duties within the scope of a Cubex driller.

If the defendant intended otherwise, it ought to have made that clear to the plaintiff from the outset. [ 49 ] There was no dispute that rock bolting and using the jackleg and stopper is dangerous work and physically unsafe if a miner is not properly trained. According to Hovdebo, it would be necessary to provide proper hands-on training, involving shadowing of another employee, being shown how to perform the task and eventually trying it out. [ 50 ] It does not appear Osman intended to follow such a training plan.

At the outset of the shift on November 2, Travis was surprised to see the plaintiff assigned to him, likely because the plaintiff did not have rock bolting experience. Because of the dangers associated with the job, Travis must have been concerned about his safety as well. Clearly, Osman had not arranged in advance for Travis to train the plaintiff.

Yet it appears Osman expected the plaintiff to be rock bolting after 3 to 4 hours into the shift. [ 51 ] It cannot be said the plaintiff defiantly disobeyed clear and unequivocal instructions or refused to carry out policies well known to him as being necessary to the defendant ( Heyes ). He accompanied Travis and was following his directions at the time he was fired. [ 52 ] In the circumstances, the Court cannot conclude that the plaintiff’s actions on November 2 amounted to insubordination. With virtually no explanation, he was asked to perform a dangerous task with very little training.

He was justified in declining. There is no doubt that his reluctance could have been more appropriately communicated to Osman. On the other hand, it appears that Osman’s supervision of the plaintiff was poorly handled as well. He was determined to have the plaintiff rock bolt and did not appear to be concerned that the plaintiff was not properly trained. 2. Surrounding circumstances

[53] The plaintiff was 42 years of age and had 19 years’ mining experience at the time of his hiring. His resume was extensive andincluded all aspects of mining, except for rock bolting experience. He was hired at the highest level of miner within the organization. [54] In Lysohirka’s experience, the plaintiff never refused to do a task he was asked to do. He had no problem with the plaintiff’swork, attitude or requests. He found the plaintiff to be a good employee who did not miss time from work and who completed his tasks. The plaintiff was honest and got along well with most people with whom he worked.

Lysohirka’s supervision of the plaintiff ended inOctober 2008, as a result of a change in management. Osman took over for Lysohirka at that time. [55] Mining is inherently dangerous, involving underground work and the use of heavy equipment and explosives. The culture ofthe defendant’s business is such that a high degree of importance is placed upon following directions from supervisors and clearlydefined regulations, policies and procedures. There is little room for independent decision-making or questioning of those procedures.

Hovdebo testified there would be chaos underground if miners did not obey their supervisors’ orders. [56] Further, Hovdebo explained that the expectation of the organization is that employees be versatile and multi-functional. Employees are required to be able to perform all duties asked of them. [57] The defendant’s disciplinary procedures provide for a series of graduated warnings and sanctions. Insubordination is aninfraction which could attract

summary termination. 3. Proportionality [58] Given the dangerous nature of a mine site, it is essential that employees follow the directions of their supervisors withoutquestion. The October 6 and November 1 incidents, while serious, were not considered by the defendant to be sufficient to warranttermination. [59] Regarding the November 2 incident, Osman became angry and terminated the plaintiff during a heated exchange. Thetermination was handled poorly. The plaintiff was not warned that if he did not agree to rock bolt his employment would be terminated.

Neither was there evidence to suggest that the plaintiff’s unwillingness to rock bolt created safety concerns. And, it was unclear why,after one year, the defendant suddenly required the plaintiff to rock bolt. [60] The defendant’s discipline procedures provide for staged warnings from Step I to Step IV, resulting in termination. Here thedefendant proceeded directly to termination after the Step II warning. The defendant’s procedures allow for

summary termination incases of insubordination. The Court has found that the November 2 incident did not amount to insubordination. [61] The Court finds the termination on November 2 was not proportionate. The situation was poorly handled by Osman andtermination appears to have been premature and an overreaction on Osman’s part. The plaintiff’s unwillingness to rock bolt onNovember 2, without adequate training and experience, was not sufficiently serious to give rise to a breakdown in the employmentrelationship. On the contrary, Hovdebo would have reinstated the plaintiff had he agreed to rock bolt.

Furthermore, Osman’s directionto rock bolt without proper training could have posed a safety risk. [62] The case of Graf v. Saskatoon Soccer Centre Inc., 2004 SKQB 282 , [2005] 4 W.W.R. 522 (Q.B.) at para. 28, sets out the essential elements for warning an employee of inappropriate conduct prior to termination, as follows: 1. the employer must provide reasonable objective standards of performance for the employee in a clear and understandable manner;

2. the employee must have failed to meet the employer’s reasonable standard of performance; 3. the employer must give the employee a clear and unequivocal warning that she or he has failed to meet the requisite standard, including particulars of the specific deficiency relied on by the employer; 4. the warning must clearly indicate that the employee will be dismissed if he or she fails to meet the requisite standard within a reasonable time. [ 63 ] Here, the expectation that the plaintiff would rock bolt on November 2 was not a reasonable objective standard of performance.

How he was to become a rock bolter was not clearly explained. The expectation appeared to be arbitrary and unreasonable given the plaintiff’s insufficient training at that point. The plaintiff was not warned that if he did not agree to rock bolt he would be terminated. Given that he was hired as a Cubex driller, he ought to have been provided a clear indication that he would be expected to learn and perform those duties and failure to comply would result in termination.

This was not done. [ 64 ] The Court finds the defendant has not met the onus that it had just cause for terminating the plaintiff on November 2, 2008. Notice period [ 65 ] The plaintiff claims his damages are in excess of $20,000, the monetary limit of this Court, based upon his position that he was entitled to one year’s notice. The plaintiff argues the common law notice periods should apply. [ 66 ] The defendant relies on the provision in the employment terms and conditions (ex P6) limiting notice to two weeks in accordance with labour standards legislation.

A declaration (ex D1) was signed by the plaintiff on November 19, 2007, upon his arrival at the mine, indicating he had read the terms and conditions and that he accepted employment pursuant to the terms and conditions. [ 67 ] The employment terms and conditions provide, with respect to termination of employment, that the employee “shall not be entitled to any severance pay or damages for wrongful dismissal in the event that the employee is laid off or dismissed, except as required by relevant labour legislation.” A

summary of certain provisions of various provincial labour standards legislation was attached but not the legislation itself. [ 68 ] In Arasteh v. Best Buy Canada Ltd. , 2010 BCSC 48 , an associate handbook limited the notice period to that provided for in provincial employment standards legislation. The appellate court upheld the trial judge’s finding that the handbook bound the employer and employee, because both parties proceeded at trial on the basis that the handbook did govern relations between the parties. [ 69 ] In Ivey v.

International Brotherhood of Electrical Workers, Local 2067 , [1996] S.J. 840 (Q.B.) , the Court distinguished between an agreement for terms and conditions of employment and a contract of employment. In that case, the employees signed an agreement with respect to terms and conditions of employment dealing with payment of wages, hours of work, benefits and severance pay.

The Court held that if an employee’s right under the common law to reasonable notice on termination of employment is to be removed, such removal must be expressed in the clearest of terms. [ 70 ] In the present case, a reading of the terms and conditions referred to “relevant labour legislation” and “applicable labour regulations” attached for the employee’s information. Exhibit P6 has attached summaries of the regulations from each jurisdiction. The limitation ought to have been more clearly spelled out if the defendant intended to rely on the minimum statutory notice periods.

[71] For the terms and conditions to be binding upon the plaintiff, they must have contractual force—that is, the usual elements ofa contract, such as a concluded agreement; consideration and contractual intention. And, assent to those terms and conditions must haveoccurred at the time when employment was agreed upon (Rahemtulla v. Vanfed Credit Union, (BC SC), [1984] 3W.W.R. 296 at p. 304 (B.C.S.C.); Fox v. Silver Sage Housing Corp., [2008] S.J.

No. 477 (Q.B.)). [72] In the present case, Hovdebo interviewed the plaintiff and offered him a position which the plaintiff accepted; the agreementoccurred over the telephone in October 2007. It was not until the plaintiff commenced his employment on November 19, 2007 that hewas provided with, and asked to read and sign the terms and conditions. No evidence was presented to suggest that the limit of damagesupon dismissal was discussed and accepted by the plaintiff at the time of the agreement in October 2007.

Neither does the plaintiff’scontinued service after being provided with the terms and conditions constitute consideration by the plaintiff for the terms andconditions. [73] The provision limiting the damages for wrongful dismissal to the statutory minimum is not of contractual force and thereforenot binding upon the plaintiff. Therefore, this Court must determine the appropriate notice period. [74] At common law an employer is obliged to give reasonable notice to an employee dismissed without cause. In Bardahl v.

TheGlobe & Mail Ltd. (1960), (ON SC), 24 D.L.R. (2d) 140 at 145, the Court states: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases.

The reasonableness of the notice mustbe decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant,the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of theservant. [75] In the present case, the plaintiff was 43 years of age, a skilled, highly specialized labourer, with approximately 20 years’mining experience at the time of his termination. He had been employed at the highest classification of miner within the organization.

According to Hovdebo, the plaintiff was hired because of his particular skills and extensive experience. He was employed by thedefendant for approximately one year. [76] There was some expectation that the plaintiff would have steady employment with the defendant, because he moved hisfamily from Ontario to Saskatchewan. He had worked as a miner for his previous employer for nine years in Ontario. [77] Upon his termination, the plaintiff began his job search immediately. He sent out 10 to 12 resumes, with no offers ofemployment.

He was hired by Bourgault Industries as a material handler and forklift operator in December 2008 on a full time basis at arate of $18 per hour. For a period of time, he received employment insurance benefits. [78] The plaintiff argues he ought to be awarded 12 months’ notice based upon his entire length of experience from all employers.The defendant asserts that service with a prior employer is not relevant and the Court ought to follow the “maximum one month’s noticefor each year of service” rule. No evidence was presented of such a custom, industry standard or law (Ivey). [79] In Vanderzander v.

Mattabi Mines Ltd., [1984] O.J. No. 201 (Ont. S.C.), the 38 year old plaintiff, who had experience inminer’s positions as a stope, drift, raise miner, scoop operator, driller, and was employed as underground supervisor and mine captainwith the defendant for approximately 2 years at the time of his termination was awarded damages in lieu of 12 months’ notice. [80] In Baldwin v. Quinsam Coal Corp., [1999] B.C.J. No. 679 (S.C.), the plaintiff in his early 40’s with 22 years’ miningexperience relocated his family from Nova Scotia to British Columbia to work for the defendant as a shift supervisor.

He was laid offafter 15 months and told 4 months later that he would not be called back. The plaintiff was awarded damages in lieu of 12 months’notice on the basis of the defendant’s inducement that there were 15 to 20 years of work available if he accepted their job offer. [81] In Pombert v. Brunswick Mining and Smelting Corp., [1987] N.B.J. No. 83 (Q.B.), the plaintiff who was employed as anunderground night shift boss for 32 months, was dismissed after incidents of disobedience. The incidents were not so serious as to justify

dismissal. The plaintiff was awarded damages in lieu of 4 months’ notice. The notice period would have been greater had he not causedunnecessary financial loss to the defendant. [82] In Battaja v. Canada Tungsten Mining Corp., [1989] N.W.T.J. No. 116 (S.C.), the 54 year old plaintiff with 9 years’ servicewas terminated suddenly for economic reasons. He was awarded nine months’ pay in lieu of notice; three months of that period wereawarded to compensate for the depression he suffered which prevented him from seeking work. [83] In Hall v. Giant Yellowknife Mines Ltd., (NWT SC), [1992] N.W.T.J.

No. 167 (S.C.), the 53 year oldplaintiff was dismissed as a mill staff supervisor, after being employed by the defendant for a total of 31 years. The period ofemployment for the purpose of fixing the appropriate length of notice was no more than 16 years however. He was awarded damages inlieu of 15 months’ notice. [84] This Court finds in all the circumstances, the plaintiff is entitled to pay in lieu of three months’ notice, based upon hisqualifications and experience, the length of service with the defendant and the relatively short time it took for him to find employmentafter his dismissal.

Calculation of Damages [85] As a result of the termination, Hovdebo testified that the plaintiff lost all bonuses, in accordance with the defendant’sdiscipline policies. The bonus system was based upon the footage or ground broken and the number of tons of ore brought to the surface. Bonuses were calculated on a two week period coinciding with the shift period. Bonuses for the plaintiff were paid in an amountequivalent to his salary. [86] The Court has found that the Steps I and II warnings were justified and the loss of the bonus attached to those warnings wasappropriate.

The November 2 incident, while not serious enough to justify termination, likely would have resulted in a Step III warningand loss of the bonus for seven days. The plaintiff may otherwise have been entitled to the payment of the bonus during the noticeperiod. [87] According to the plaintiff’s tax return for 2008, he earned $81,790 annually or $6,816 monthly as the defendant’s employee;this figure would have included bonuses. Following his termination, he received $1,522 as employment insurance benefits. Hecommenced employment with Bourgault Industries on December 18, 2008.

His annual gross pay from his new employer was $44,690annually or $3,724 monthly. [88] The loss of seven days’ or one week’s bonus is estimated to have been $1,704 ($6,816 x 1/4). [89] The plaintiff is entitled to damages in an amount equivalent to three months’ salary, bonuses (subject to the disciplineprocess) and benefits, less the amount received in employment insurance benefits and the amount earned from his subsequentemployment during the notice period, calculated as follows: Salary/bonus during notice period Nov 2/08 to Feb 2/09 $6,816 x 3 months $20,448 Less 7 days’ bonus $1,704 Less employment insurance

benefits 1,522 Less earnings during notice period from Dec 18/08 to Feb 2/09 $3,724/mo x 47 days 5,828 ___________________ $11,394 Conclusion [ 90 ] Inasmuch as the defendants are involved in a joint venture they are jointly and severally liable. [ 91 ] The plaintiff will have judgment against the defendants in this action, jointly and severally, in the amount of $11,394, along with pre-judgment interest from November 2, 2008 and costs of issuing the claim. _______________________________ D.C. Scott, J [1] ‘ Cubex ’ is the name of the manufacturer of this type of drill. [2] c. O-1.1 Reg 2 [3] R.S.S. 1993, c. O-1.1