On Second Thought, Employer Says Employee Was Terminated With Cause feature image

On Second Thought, Employer Says Employee Was Terminated With Cause

In last week’s blog we covered the notice period and bonus payments for a long-term employee of a company. In this week’s blog, we turn to the Alberta Court of Queen’s Bench in order to look at the damages given to an employee with a shorter history with an employer following a wrongful dismissal.

The employment relationship

The employee worked as an architectural technician with the employer, a job he had held for just over three years prior to his termination. At the time of the termination he was 54-years-old. When he was initially terminated, the company said it was on the basis of lack of work, providing the employee with severance. When the employee challenged the dismissal, the employer defended itself on the basis of just cause, citing inappropriate behaviour, performance issues, and insubordination as causes.

Ultimately, the issue before the courts is how much notice is reasonable in the situation as well as whether bonus and overtime payments should be included. Finally, the court had to consider whether Wallace damages should be awarded, which are damages awarded due the manner in which an employer handles a termination.

Just cause

The court reviewed the evidence provided by the employer to support their claims of termination with cause. They issues included “inappropriate behaviour, timesheet issues, expense claim issues, and failure to return calls and follow through on commitments with clients.” However, the court found that the employer did not warn the employee about the issues in writing, nor did they tell him a failure to correct the issues would result in his dismissal. As a result, the employer was not entitled to dismiss the employer based on those infractions.


Since the court found the termination to have been made without cause, the next issue to determine was what the damages would be. Some of the factors to include when determining these types of questions were set out in a 1960 decision, providing what are now known as the Bardal factors. These include the character of the employment, the employee’s age, length of service, responsibilities, experience and training, and the availability of alternate employment.

The court looked at the facts at hand, noting that the employee was 54-years-old, and had a busy and responsible position with the company. He was also let go during a downturn in the economy. This resulted in taking him some time to find new employment.

The court determined that reasonable notice should be set at seven months, which equaled $49,000. The court also added in overtime at about 20 hours per month. When looking at whether the employee’s expected bonus could be included, the court determined that even though it was discretionary, each employee received a bonus that year, and the employee should have as well.

Finally, the court did not award any Wallace damages, citing evidence that both the employee and employer conducted themselves in ways they shouldn’t have.

Through early and forward-thinking consultation with a knowledgeable employment lawyer, parties can proactively address the legal implications of a termination. HMC Lawyers endeavours to offer exceptional advice at reasonable rates, so clients can consult with counsel from the outset and save money in the long run by minimizing legal risk and exposure to litigation.

To make an appointment and get advice about an employment matter, including wrongful or constructive dismissal claims, call 1-800-480-3534 or contact us online. We represent clients in Calgary, throughout Alberta, and across Western Canada.



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