Sihvo v. Finning International Inc., 2003 BCSC 484

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sihvo v. Finning International Inc., 2003 BCSC 484 Date: 20030401 Docket: S072086 Registry: New Westminster Between: Martti Sihvo Plaintiff And Finning International Inc. Doing business as Finning Canada Defendant Before: The Honourable Mr. Justice Crawford Reasons for Judgment Counsel for the plaintiff R.K. Oliver Counsel for the defendant: E.J. Marion Dates and Place of Trial: January 23 and 24, 2003 New Westminster, B.C. INTRODUCTION [ 1 ] Mr. Sihvo's employment with Finning terminated on October 12, 2001.

He had been a long term employee, with his initial work for Finning beginning January 1977 as a heavy duty mechanic, and latterly, since 1994, as a warranty technician. [ 2 ] From his termination, three issues arise: i. What is reasonable notice in his particular circumstances? ii. Is he entitled to calculation of vacation on his overtime after being rehired to a salary position in 1994? iii. Should he be recompensed for time off when he says he was sick but which the company treated as holidays? i.

WHAT IS REASONABLE NOTICE IN THE CIRCUMSTANCES? [ 3 ] The principal point of argument on this issue arises from the fact that Mr. Sihvo's employment was broken by termination on August 31, 1994. At that time the defendant's component rebuild division was going to be moved from Vancouver to Edmonton, Alberta. Mr. Sihvo did not want to move due to his family circumstances. He accepted a severance package providing for payment of seventeen weeks severance in recognition of his seventeen years employment with Finning.

That sum was to be paid as a salary continuance for a seventeen week period. [ 4 ] In the letter accompanying the severance, Mr. Sihvo's recall rights were terminated under his collective agreement. [ 5 ] However, Mr. Sihvo was still entitled to seek other positions with Finning and in fact sought a position as a warranty technician. He was re-employed by Finning "on or about" October 31, 1994. He was never off Finning's payroll records.

He was not paid the balance of his severance. [ 6 ] In being rehired as a warranty technician, it was agreed that he retain his seniority with respect to his vacation entitlement (then five weeks) but he took a lesser wage and in fact it was a salaried position, not as a unionized hourly worker. [ 7 ] The defendant says in the circumstances the continuity of service from 1977 was broken in 1994; that in any event, the period of reasonable notice should be less than Mr. Sihvo claims; and thirdly, it says Mr. Sihvo has failed to mitigate his claim and therefore his notice should be further reduced.

[ 8 ] A number of cases favour the plaintiff's argument, i.e. that a relatively short time away from a long-term employer may not break the continuity of employment: see Roscoe v. McGavin Foods Ltd. (1983), 2 C.C.E.L. 287 ; Krewenchuk v. Lewis Construction Ltd., [1985] B.J.C. No. 1553; Immaculate Confection Ltd. v. Claudepierre (1991), 38 C.C.E.L. 119 ; and Chorny v. Freightliner of Canada Ltd., [1995] B.J. No. 51. [ 9 ] The defendant says that this is a different case in that there was an express written termination, and severance was paid.

The difficulty with that argument is that severance was not paid in whole, i.e. if it was truly a severance, then Finning should have paid out the balance of the seventeen weeks severance. In fact they did not. They rehired Mr. Sivho. They did not pay the balance of the severance and thereafter Finning treated Mr. Sihvo as if there was continuity of employment. On reaching 20 years employment with Finning, his vacation was increased a further week, and a gold watch was presented to Mr. Sihvo in recognition of his 20 years achievement. [ 10 ] I am satisfied on the evidence that reasonable notice in Mr.

Sihvo's case should reflect the totality of his years of service. Some additional circumstances [ 11 ] Mr. Sihvo is now 54. He was born in Finland and qualified as a mechanical engineer, then came to Canada in 1972. After various jobs he started with Finning as a heavy duty mechanic in 1977. He married in 1977. He and his wife have had five children, but his wife is now being affected by the complications of post-polio syndrome. [ 12 ] Mr.

Sihvo worked as a union employee and after a few short layoffs in the late 1970's, he worked continuously for Finning in their remand department, fixing heavy equipment trans-missions. [ 13 ] The work as a "warranty technician" drew on his experience in the heavy mechanic department, but he effectively became an office worker in the sense of receiving, assessing, and approving (or not approving) warranty claims on heavy machinery. In so doing he acquired new clerical skills, using a computer and operating within defined procedures. [ 14 ] The appointment of Ms.

Cruly as his supervisor seemed to become a problem for Mr. Sivho. He went off on sick leave in February, 2001, but returned to work promptly when the disability insurer questioned the basis for the claim. [ 15 ] Subsequently he was approved for short term disability and time off for treatment 19 July to 24 August, 2001. Then he was granted leave and given the assistance of an employment counsellor in September.

When nothing came of that, he was released 1 October, 2001, by letter dated 10 October 2001. [ 16 ] Generally Finning graded him consistently as a good worker, i.e. “proficient (fully acceptable, all job requirements met)”. [ 17 ] I have considered the factors set out in the leading cases namely: Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC) , [1960] 24 D.L.R. (2d) 140; and Ansari et al v. British Columbia Hydro and Power Authority, 1986 CanLII 1023 (BC SC) , [1986] 2 B.C.L.R. (2d) 33. [ 18 ] I take into account Mr.

Sihvo's age, the character of his employment, the length of his service, and the opportunity for re- employment, which I note is affected by evidence of his back being weakened by job injury. I take into account Finnings efforts to resolve or help Mr. Sivho in 2001. [ 19 ] He has been attempting to find work without any success.

He attributes this to there being younger and similarly qualified people in the market place able to take the positions he is interested in. [ 20 ] Finning's evidence as to newspaper ads showing possible job opportunities cannot be said to be strong evidence. [ 21 ] In the circumstances I fix reasonable notice at 15 months. Mitigation [ 22 ] Finning argues that Mr. Sihvo has failed to mitigate. As Ms. Marion notes, there is a duty to mitigate, but the onus is on the person alleging failure to mitigate: see Red Deer College v. Michaels, 1975 CanLII 15 (SCC) , [1975] 57 D.L.R. (3d) 386. [ 23 ] Mr.

Sihvo's evidence is that he has been following job positions; that he has made applications but he has just not been successful. While his evidence is not the strongest, the onus is on the defendant and I find that allegation not proven. ii. LOST VACATION [ 24 ] Mr. Sihvo advances the argument that he is owed vacation time.

He says that during the discussions that led to his re-employment, he got the impression that he would be entitled to the benefit of the union position, i.e. that in working overtime he would get an additional 12% vacation added on. [ 25 ] He says he harboured this viewpoint from his re-employment in 1994 until he was terminated. But at no stage did he make such a claim to his employer. Nor do I find on the evidence before me that there was any such agreement. Rather, his employment was plainly at a salary together with vacation that took into account his length of service to the company.

There is nothing owing for the claimed 12% overtime. iii. SICK PAY

[ 26 ] Mr. Sihvo says that in considering his last year of employment, he is entitled to reimbursement for time arbitrarily ascribed to him as "holiday time" when in fact it should have been "sick time". [ 27 ] It appears that when Ms. Cruly became his department manager, he did not get along with her and he fell sick. Finning's employment plan allows 4 days of sick leave before the short-term disability insurance with Sun Life Assurance is triggered. [ 28 ] It appears that in the first week of February 2001, the Sun Life Disability adjuster telephoned Ms.

Cruly and advised that there did not appear to be sufficient evidence to warrant the claim that had been forwarded by Ms. Cruly dated January 29, 2001 (see plaintiff's document No. 29). [ 29 ] The insurance advice was confirmed by a letter dated February 7, 2001, to Finning (see plaintiff's document No. 27), wherein it was said: "We feel the information provided for this employee is questionable as to whether the employee is entitled to sick leave benefits.

You [Finning] have the option of requesting additional medical information and chart records for this employee." [ 30 ] However, in the interim, it would appear that Ms. Cruly telephoned Mr. Sihvo and advised him the claim was going to be rejected (the claim document is under Tab 30 of the plaintiff's documents) and she gave him the choice of either claiming leave of absence without pay or accepting pay but deducting it from holidays. [ 31 ] Mr. Sihvo chose holidays as he wanted the money for his family's expenses. [ 32 ] The claim is for nine sick days that were arbitrarily taken by the company from Mr.

Sihvo's holidays. [ 33 ] It appears to me that Mr. Sihvo, as soon as he was aware of the potential loss of holiday time, returned to work. [ 34 ] It further appears that Mr. Sihvo's claim was, to a large extent, stress related, i.e. he was claiming his superior (Ms. Cruly) was making his work circumstances stressful. As the insurance company noted, work dissatisfaction is not covered under their agreement. The documentation seems incomplete, as does the medical evidence. I find I am not able to accede to Mr. Sihvo's request for the nine days of holiday pay.

COSTS [ 35 ] While the company has been successful on two aspects of the claim, Mr. Sihvo has succeeded on the main aspect of his claim. The divided success should be reflected in costs. Mr. Sihvo is therefore entitled to 50% of his taxable costs at Scale 3, and 100% of his disbursements. “R. Crawford, J.” The Honourable Mr. Justice R. Crawford