This is a case in which the plaintiff brought an action for wrongful dismissal damages. The 22 year old plaintiff accepted a job with the defendant company as a senior software engineer while he was employed elsewhere. The plaintiff received and executed a formal employment contract with the defendant. The contract contained a probation clause stating that the plaintiff’s employment was subject to a probation period of three months as of the effective date (the first day of work) at which time the employer may terminate the employment without cause or notice.
Shortly after the contract was executed, and before the commencement of his employment, the CEO of the defendant company met with the plaintiff and advised him that the defendant was “retracting” its offer of employment due to business and staffing needs. The plaintiff had not performed any work for the defendant. In the days after the “retraction” of the contract, the plaintiff did not respond to offers by the defendant for short term employment. The plaintiff found an employment position with a different company nearly two months later.
Mr. Justice Skolrood found that the plaintiff was wrongfully dismissed. Specifically, he found that the defendant was not able to rely on the probation clause to support its termination of the plaintiff without notice for a couple of reasons. First, he found that the probationary clause was not in force when the defendant retracted the contract as the three month probation period commenced as of the first day of work. As such, the probation clause had no application prior to the plaintiff actually starting work.
Second, Mr. Justice Skolrood states, at paragraph 19, that the “purpose of the probationary clause is to permit the employer to engage in a good faith assessment of the employee’s suitability for the position in issue.” Here, there was no good faith assessment by the defendant of the plaintiff’s suitability for the job. Mr. Justice Skolrood further found that the defendants “retraction” of the contract was a repudiation which was accepted by the plaintiff.
The plaintiff was entitled to damages equivalent to six weeks’ notice.
The court also found that the plaintiff did not fail to mitigate his damages by not following up with the defendant’s offer of short term employment as the offers were vague and lacked specific information. The court was also satisfied that the plaintiff took reasonable steps to secure alternate employment.
The complete decision can be found here: https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc1002/2017bcsc1002.html