Richard Hengerer - v. -, 2011 SKPC 58

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 058 Date: April 25, 2011 File: S.C. No. 85 of 2010 Location: Estevan _____________________________________________________________________________ Between: Richard Hengerer - and - Orlin Hector and Lisa Hector Self-Represented For the Plaintiff / Defendant by Counterclaim Chad Jesse For the Defendants / Plaintiffs by Counterclaim _____________________________________________________________________________ JUDGMENT J.

KALMAKOFF , J _____________________________________________________________________________ THE PARTIES [ 1 ] The Plaintiff, Richard Hengerer, worked as a farm labourer for the Defendants, Orlin and Lisa Hector, from April of 2010 until September of 2010.

[ 2 ] Mr. Hengerer has brought an action against the Hectors, seeking damages for wrongful dismissal, and other costs related to that dismissal. The Hectors have counterclaimed against Mr. Hengerer for costs relating to Mr. Hengerer’s tenancy on their property during the course of his employment. FACTUAL BACKGROUND [ 3 ] Orlin and Lisa Hector farm more than 10,000 acres near the town of Macoun, Saskatchewan. It is a grain farm. They employ labourers; some full-time, and others only for spring seeding and fall harvest operations. [ 4 ] In the spring of 2010, the Hectors hired Richard Hengerer as a farm labourer.

Prior to being hired by the Hectors, Mr. Hengerer lived in Raymond, Alberta. Mr. Hengerer was introduced to the Hectors through an advertisement the Hectors had placed with an on-line employment service. After meeting and interviewing Mr. Hengerer, the Hectors offered him full-time employment. [ 5 ] There was no written contract, but general terms were agreed upon, and Mr. Hengerer began working for the Hectors in late April of 2010. After accepting the job, Mr. Hengerer moved his common-law wife and their young son to the Macoun area.

They purchased a mobile home, and had it moved onto a farmyard owned by the Hectors. [ 6 ] Mr. Hengerer worked through the summer of 2010 for the Hectors. The parties disagree on the quality of work Mr. Hengerer provided. [ 7 ] A number of factors, including a back injury and rainy weather, led to Mr. Hengerer being unable to work for several days in early September. While absent from his farm work during this time, in addition to tending to his medical needs, Mr. Hengerer began looking for other employment.

He cited a need to supplement his income, due to financial strains, the fact that his common-law wife was due to give birth to their second child in late September, and the fact that he wanted to ensure that he would have income if the Hectors were not in a position to continue to employ him after December. The Hectors became concerned that, by doing so, Mr.

Hengerer was essentially repudiating his contract of employment, by making himself unavailable to carry out his duties on their farm during the crucial harvest season. [ 8 ] September of 2010 was a difficult month for the agricultural industry in southeastern Saskatchewan. As in many years, grain farmers were racing against time to try to complete their harvest, and cold, wet weather in September made that even more difficult than normal. [ 9 ] In mid-September, Mr. Hector and Mr. Hengerer met. Mr. Hector informed Mr. Hengerer that he would no longer employ him on the farm, and terminated his employment.

ISSUES 1. What were the terms of Mr. Hengerer’s employment? 2. Was Mr. Hengerer dismissed, or did he resign? 3. If Mr. Hengerer was dismissed, was he dismissed with cause? 4. If Mr. Hengerer was dismissed without cause, what remedy is appropriate? 5. Should the Hectors be liable for any of Mr. Hengerer’s moving costs?

ANALYSIS 1. What were the terms of Mr. Hengerer’s employment? [ 10 ] Mr. Hengerer was an employee of the Hectors’ farming operation, subject to a contract of employment. Since there was no formal written contract, it falls to the Court to determine the terms of the contract from the available evidence. I am satisfied from the evidence that Mr. Hengerer agreed to begin work in late April of 2010, and that he was to perform duties at the instruction of Mr.

Hector, in a fashion that was consistent with the needs and demands of a grain farming operation, and to work such hours as reasonable and necessary to complete those duties. Mr. Hengerer was also required to make himself reasonably available to carry out his duties for the Hectors’ farming operation, and exercise reasonable skill and care in the performance of his duties. In exchange for his services, Mr. Hengerer was to be paid a wage of $20.00 / hour. He would be subject to a performance review in December of 2010, to determine whether his employment would continue beyond that time. 2. Was Mr.

Hengerer dismissed, or did he resign? [ 11 ] Mr. Hengerer testified that, initially, his employment with the Hectors went well. He worked through the spring seeding season without trouble, but felt that the pressure of the farm work was affecting his physical and mental health as the summer wore on. In late August, while operating a sprayer, and desiccating a field of mustard, he ran over a rock pile. The force of the impact hurt his back. A few days later, while doing some work on his home, the back injury was exacerbated; he had suffered a slipped disc. This led to Mr.

Hengerer being unable to work for several days, until the pain subsided and his mobility returned. [ 12 ] By September 8 th , Mr. Hengerer said he was ready to return to work, but Mr. Hector refused to let him do so until Mr. Hengerer had (1) obtained a Saskatchewan driver’s licence, and (2) a “clean bill of health”. Mr. Hengerer testified that he had made efforts to obtain a Saskatchewan driver’s licence, as he knew he was required to, but that SGI would not allow him to transfer his Alberta licence to Saskatchewan until he could provide proof of Saskatchewan residency, which he claimed he was unable to do.

Eventually, on September 16, 2010, Mr. Hengerer was able to secure a Saskatchewan driver’s licence. [ 13 ] Mr. Hengerer also testified that, in addition to suffering a back injury, he was experiencing increasing anxiety regarding his financial situation. He was having difficulty meeting his obligations, and his financial situation was becoming increasingly urgent. His spouse was only days away from delivering their second child, and he had no guarantee from the Hectors of any employment past mid- December. [ 14 ] Faced with this situation, Mr. Hengerer said he decided to look for supplementary employment.

He sought out prospective work at the Weyburn Inland Terminal, and Frontier Peterbilt in Estevan. He said he was offered part or full-time work at both places, and was especially interested in the opportunity at Frontier Peterbilt, as it offered what may well turn into long-term, stable employment, with the possibility of advancement in the heavy duty mechanic trade. [ 15 ] Mr. Hengerer said that he wanted to accept the offer from Frontier Peterbilt, but only if the Hectors agreed to it.

He said that when he raised it with the Hectors, they were only willing to allow him to accept part-time work at the Weyburn Inland Terminal. [ 16 ] Mr. Hector gave a different version of events. He said that Mr. Hengerer was a less than satisfactory employee from the beginning of his term of employment, and did not have the skills necessary to contribute to the farming operation in the way that was expected. According to Mr. Hector, Mr. Hengerer was frequently late for work, and unproductive when working. Mr. Hector said that Mr.

Hengerer often expressed displeasure with working on the farm, and effectively made himself unavailable to work during the crucial harvest season. When Mr. Hengerer began to look for full-time work elsewhere, Mr. Hector took that as tantamount to resignation by Mr. Hengerer. [ 17 ] Voluntary resignation terminates a contract of employment, and disentitles the employee to notice or pay in lieu. However, in this case, I am satisfied that Mr. Hengerer did not voluntarily resign. Mr. Hector agrees that, in mid-September of 2010, he told Mr. Hengerer that he could no longer keep him as an employee.

[18] Further, although Mr. Hengerer was looking for alternative employment while still employed by the Hectors, there is noadmissible evidence before me that he actually accepted such other employment, at least in such a fashion that would prevent him frombeing available to work for the Hectors. [19] I accept that Mr. Hengerer was concerned about his mounting financial problems, and the fact that his employment future wasuncertain after mid-December.

He may also have been dissatisfied with working for the Hectors, and looking for other options, but fromthe evidence before me, I am satisfied that at the relevant time, Mr. Hengerer continued to make himself available to work for theHectors. On September 19, 2010, he phoned Mr. Hector to ask if they would be combining that day, to see if he should report for work. That day, Mr. Hector informed Mr. Hengerer that his employment was terminated. [20] I am satisfied that Mr. Hengerer did not resign; he was dismissed. 3. If Mr.

Hengerer was dismissed, was he dismissed with cause? [21] Where an employer has just cause to dismiss an employee, the employee may be summarily dismissed, and notice is notrequired. The onus is on the employer to establish just cause for dismissal, and this onus must be discharged at least on a balance ofprobabilities (Butler v. Canadian National Railway, (SK CA), [1940] 1 D.L.R. 256 (Sask. C.A.); Bohay v. 567876Saskatchewan Ltd., 2009 SKPC 128; Duguay v. Mudjatik Thyssen Mining Joint Venture Ltd., 2010 SKPC 183; Gabriel v. Cargill Ltd.,2003 SKQB 457 , [2004] 9 W.W.R. 140 (Sask. Q.B.)). [22] In Chester v.

Pepsi-Cola Canada Ltd. (2005), 2005 SKQB 110 , 260 Sask. R. 243 (Q.B.), Justice Maher had this tosay regarding dismissal for cause, at paragraphs 14 - 16: [14] In Warren v. Super Drug Markets Ltd., 53 W.W.R. 25 (Sask. Q.B.), Tucker J. held that the onus of establishing just cause on abalance of probabilities was on the employer. This was further commented on by Howard A.

Leavitt, in The Law of Dismissal in Canada, 3rd ed. at 6-2 where the author said, “since dismissal without notice is such a severe punishment it can be justified only bymisconduct of the most serious kind”. [15] The Supreme Court of Canada in McKinley v. BC Tel, 2001 SCC 38, held that the three criteria to be taken into account whenconsidering a determination of just cause are: 1. The nature of the misconduct; 2. The consequences arising from the misconduct; 3.

The nature and history of the total employment relationship. [16] The onus, therefore, is upon the employer first to establish the employee’s misconduct on a balance of probabilities and then theemployer must establish if the nature or degree of misconduct warranted dismissal. [23] The Hectors do not rely on a single, distinct act by Mr. Hengerer as cause for dismissal. Mr. Hector described a number ofproblematic aspects of Mr. Hengerer’s performance as an employee, including: · beginning work later than anticipated, thereby delaying the Hectors’ seeding operation; · being easily sidetracked; Mr.

Hengerer would start strong, but his performance would quickly trail off, no matter what the task; · Mr. Hengerer was unable to fix or repair equipment, and generally left the equipment he used in a state of disrepair; · as time went on, Mr. Hengerer became increasingly unproductive; his “breaks” became longer and longer, eventually consumingup to half of his work day; · Mr. Hengerer did not obtain a Saskatchewan driver’s licence until September 16, 2010, despite being repeatedly advised to do soby Mr. Hector;

· Mr. Hengerer was frequently unavailable to work when there was work for him to do, and his quest to find other employment inSeptember of 2010 made it appear as though this situation would continue to worsen; · on September 19, 2010, although Mr. Hengerer had secured a Saskatchewan driver’s licence, he still had not transferred hisvehicle registration to Saskatchewan, in breach of provincial traffic safety legislation. [24] Individually, none of these problems would, in my view, be cause for dismissal.

In order to establish that an employee’s poorjob performance is grounds for dismissal, the employer must show more than mere dissatisfaction with the work of the employee, or thatthe employee was careless or indifferent (Janosch v. Provincial Plating Ltd. (2000), 2000 SKQB 44 , 190 Sask. R. 250 (Q.B.);Bogden v. Purolator Courier Ltd. (1996), (AB KB), 182 A.R. 216 (Q.B.)). [25] As they add up, a number of minor incidents can justify

summary dismissal, provided their cumulative effect results in aserious deterioration of the employment relationship (Perham v. Canada Trust Co. (1988), (BC SC), 23 C.C.E.L. 277(B.C.S.C.)). [26] However, in order to rely on generally poor job performance as the reason for dismissal, the employer must have first clearlynotified the employee what standard of performance is expected.

If the employee has failed to meet that reasonable standard, theemployer must give the employee a clear warning that he or she has failed to do so, and that dismissal will result if he or she fails to meetthe requisite standard within a reasonable time. If such warning is not provided in those circumstances, the employer is not entitled tosummarily dismiss the employee (Graf v. Saskatoon Soccer Centre Inc. (2004), 2004 SKQB 282 , 250 Sask. R. 161 (Q.B.);Bohay v. 567876 Saskatchewan Ltd., supra). [27] Although I am satisfied from the evidence in this case that Mr.

Hengerer was far less than an ideal employee for the Hectors, Iam not satisfied that the Hectors gave him sufficient warning, prior to dismissing him, that his job performance was inadequate to thepoint that he was in jeopardy of dismissal if the problem was not rectified. [28] Accordingly, I find that the Hectors fall short of proving that they were entitled to summarily dismiss Mr. Hengerer from hisemployment. 4. If Mr. Hengerer was dismissed without cause, what remedy is appropriate? [29] An indefinite contract of employment may be terminated by the employer for any reason, upon provision of reasonablenotice.

In the absence of an express agreement regarding notice, an employee is entitled, at common law, to notice that is reasonable inall of the circumstances (Carter v. Bell & Sons (Canada) Ltd., (ON CA), [1936] 2 D.L.R. 438 (Ont. C.A.)). [30] The reasonableness of the notice must be decided in reference to the particular case, having regard to the nature of theemployment, the length of service of the employee, the age of the employee and the availability of similar employment, having regard tothe experience, training and qualifications of the employee (Bardal v.

The Globe and Mail Ltd. (1960), (ON SC), 24D.L.R. (2d) 140 (Ont. H.C.); Janosch v. Provincial Plating Ltd., supra). [31] Labour standards legislation can also provide some guidance regarding the appropriate period of notice. In Saskatchewan,The Labour Standards Act, R.S.S. 1978, c. L-1, governs employment standards. Sections 43 and 44 of The Labour Standards Actprovide that an employee who has worked for a minimum of three months, but less than one year, for an employer is entitled to oneweek’s notice of discharge, or pay in lieu.

Section 4(3) says that The Labour Standards Act does not apply to employees engagedprimarily in farming. Even though The Labour Standards Act does not apply in this case, it provides a reference point. It should also benoted that such legislation sets out the minimum required notice periods, and does not affect the requisite periods as determined bycommon law. [32] In this case, there are a number of relevant factors which guide me in determining the appropriate notice to which Mr.Hengerer was entitled.

[ 33 ] First, I consider the length of his employment. Length of service is an important factor, but not the only consideration in determining the appropriate length of notice. Mr. Hengerer was employed by the Hectors for approximately five months. This would suggest that he was entitled to a relatively short period of notice. [ 34 ] Second, I consider the nature of the position he held at the time of termination. Mr. Hengerer was employed as a general farm labourer.

This would suggest he was entitled to a shorter period of notice than if he had held a highly skilled, specialized, technical, or professional position. [ 35 ] Third, I consider Mr. Hengerer’s age. Older employees are generally entitled to longer periods of notice, as it is less likely that they will find alternative employment as quickly as younger employees. Mr. Hengerer was 30 years old when terminated from this position. His age would not make him unattractive to employers, and as such is no reason to increase the period of notice. [ 36 ] Fourth, I consider the availability of similar employment.

If the employee has vast experience, or the occupation is not unique and is widely available, the employee is generally entitled to less notice. Mr. Hengerer had considerable employment experience. Work for farm labourers is readily available and is not unique. This would suggest a shorter period of notice was reasonable. In considering this factor, I am mindful of the fact that Mr. Hengerer had other prospective employment in the Estevan area at the time he was dismissed, and was able to find employment in Alberta within a month of being dismissed by the Hectors. [ 37 ] Finally, I consider the effect of Mr.

Hengerer’s relocation from Raymond, Alberta to Macoun, Saskatchewan in order to work for the Hectors. In my view, this factor must be given considerable weight in this case. An employee who relocates at the behest of the employer is generally entitled to a larger award of damages than he or she might otherwise be. Although I have no doubt that Mr. Hengerer was prepared to relocate in order to work for the Hectors, and did so voluntarily, it is clear that relocation entailed significant expense for him. I am satisfied that relocation by Mr.

Hengerer is a factor that increases the notice period to which he was entitled in this case. [ 38 ] Considering all these factors, I am satisfied that the reasonable period of notice to which Mr. Hengerer was entitled was three weeks. Since he was not provided with such reasonable notice of the termination of his employment, Mr. Hengerer is entitled to pay in lieu of that notice. The evidence (Exhibit P-2) before me indicates that from April 27, 2010 through August 31, 2010 (a period of 18 weeks), Mr. Hengerer worked 709.5 hours. This works out to an average of just under 39.5 hours per week. Mr.

Hengerer’s salary was $20.00 per hour. Therefore, I find that his pay in lieu of reasonable notice should be calculated as follows: 3 weeks x 39.5 hours/week x $20.00/hour = $2,370.00 5. Should the Hectors be liable for any of Mr. Hengerer’s moving costs? [ 39 ] Mr. Hengerer has also claimed for costs associated to moving from Raymond, Alberta to the farm near Macoun, Saskatchewan, and for costs associated to moving back to Raymond following his dismissal.

In short, I am not satisfied that the Hectors should be held liable for any of those costs. [ 40 ] First, there was never any agreement, express or implied, between the parties that the Hectors would be responsible for paying Mr. Hengerer’s relocation expenses. I accept that the Hectors, in fact, offered to purchase a condominium in Estevan, and rent it to Mr. Hengerer and his spouse at a reduced cost, in order to minimize Mr. Hengerer’s relocation expenses. Mr. Hengerer rejected that offer, and I am satisfied that it was a voluntary decision by Mr.

Hengerer to move a mobile home to the yard site owned by the Hectors, knowing that he may incur significant expense in doing so. [ 41 ] Second, the evidence indicates that the Hectors were more than reasonable in regards to Mr. Hengerer’s living situation. Mr. Hengerer was allowed to move the mobile home onto the Hectors’ yard site, and use the yard site without paying rent. The Hectors also

made improvements to the yard site, at their own expense, to make sure Mr. Hengerer had services such as water, electricity and heatavailable to him while he lived there. [42] Finally, I am of the view that Mr. Hengerer’s moving expenses are too remote from his dismissal to form the basis of liabilityfor the Hectors, and would have been incurred even if Mr. Hengerer had been given reasonable notice of dismissal (See Zylawy v.Edmonton (City) (1985), (AB KB), 60 A.R. 259 (Q.B.)). [43] The portion of Mr. Hengerer’s claim regarding moving costs is dismissed.

COUNTERCLAIM [44] The Hectors have also brought a counterclaim against Mr. Hengerer, claiming $534.43. This amount is comprised of $150.00for Mr. Hengerer’s electricity usage while he resided on property owned by the Hectors, and $384.43 for replacement of the water pumpon that property, which burned out during Mr. Hengerer’s tenancy. [45] I am satisfied on a balance of probabilities that Mr. Hengerer agreed to pay for his electricity usage while he resided onproperty owned by the Hectors. There was little dispute in the evidence on this point.

This portion of the counterclaim, in the amount of$150.00 is allowed. [46] With respect to the claim for the burned out water pump, it was apparent from the evidence that, during the course of Mr.Hengerer’s employment, the Hectors extended to him the benefit of being able to reside in his mobile home on a serviced lot, rent free. Iconclude from all the evidence that the Hectors agreed to make sure the lot was properly serviced, including ensuring that Mr. Hengererwould have access to water.

I am unable to conclude, from the evidence, the precise cause of the water pump burning out, and as such, Iam unable to conclude that Mr. Hengerer should be held liable for this expense. CONCLUSION [47] Mr. Hengerer’s claim will be allowed, in part. He has established his claim in the amount of $2,370.00. Orlin and LisaHector’s counterclaim has also been established, in part, in the amount of $150.00. [48] Pursuant to section 32(5) of The Small Claims Act, 1997, S.S. 1997 c. S-50.11, Mr.

Hengerer is entitled to judgment in theamount of the difference between the two. [49] Therefore, I award judgment to the Plaintiff, Richard Hengerer in the amount of $2,220.00, plus $36.00 for the cost of thesummons, and pre-judgment interest in accordance with The Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2, calculated from thedate of the summons. J. Kalmakoff, J