Pakozdi v. B & B Heavy Civil Construction Ltd., 2016 BCSC 992 (CanLII)
Mr. Pakozdi sued his former employer (“B & B”) for wrongful dismissal and claimed he was promised a five-year term of employment. He was 55 years old and had worked in construction for 30 years. After some years of working for various companies, he set up his own business as a bid-estimator.
Following some initial discussions between Pakozdi and B & B in November 2013, he started working as a contractor. In late December 2013, he became an employee of B & B. He continued to consult for another client. In January and again in May 2014, he suffered injuries that aggravated pre-existing medical conditions such that he was unable to attend the work sites for some time. Nevertheless, the injuries did not seriously interfere with his ability to perform his duties. In late November or early December 2014, he suffered a setback from a spinal condition and was off work again until January 2015. The relationship between Pakozdi and his supervisor became difficult. There were communications, which culminated in email 12 January where he accused his supervisor being highhanded and abusive. Pakozdi got fired and received two weeks’ severance.
After the termination Pakozdi’s medical problems continued. At trial, his doctor’s opinion was that he had a number of significant barriers that impacted his ability to find alternative work. He continued to do some consulting work.
On the evidence, the Court did not accept that Pakozdi was hired on a 5-year term contract. The Court accepted that it was entirely possible that he had that impression. A term contract requires “unequivocal and explicit language in order to establish a fixed-term contract: Foreman v. 818329 Ontario Ltd. (2003), 2003 CanLII 57401 (ON CA), 229 D.L.R. (4th) 385 (Ont. C.A.).”
The parties disagreed with respect to the amount of reasonable notice was required. The Court found that in light of his experience, age and length of employment, the applicable notice period is five months. The Plaintiff argued that that he was vulnerable at the time of his firing given his medical condition, and that should be taken into account to increase the notice period (Ostrow v. Abacus Management Corporation Mergers and Acquisitions, 2014 BCSC 938 (CanLII)). The Court accepted that and increased the notice by an addition 3 months, for a total of 8 months.
The Court accepted that the difficulty he now faces from his physical injuries and his medication exacerbated his difficulties in finding other employment. As well, as both parties were aware that Pakozdi would continue to work for the other client, while in the employ of B & B, it was proper to exclude the earnings from that source from the calculation of damages.