Mitigation: Offer of Return to Work: Evans: Facts

Don Evans had been employed as a business agent for the union at its Whitehorse office for over 23 years. The only other employee in this office was his wife, Barbara. A new union executive was elected on January 2, 2003. During the election campaign, Evans actively supported the incumbent president, who was not the victor. The election campaign was “hard worked”. The new president was not on speaking terms with the incumbent after the election. S. 13 of the Bylaws of the union allowed for termination of Evans that day without notice. This section linked the term of business agents to the term of the executive which had appointed them. ²

👤
About the Author: David Harris — Canadian Employment Law •
💼
LinkedIn •
🎥
YouTube

📚
Explore Other Chapters in This Book

🔙
Back to Mitigation Main Page

🏠
Return to Canadian Employment Law

2. Evans SCC [/efn_note

   On January 2, 2003, the new president, Hennessy, sent a letter to Evans providing written notice of termination and also called the same day to commence negotiations for a severance agreement. Evans had been sent a copy of legal counsel’s intended letter which was not sent in the same form to Evans. The letter drafted by counsel contained an offer of compensation which the actual letter did not repeat.

   Evans also taped the phone call, unknown to Hennessy. The telephone call was intended to engage Evans in negotiations about a possible rehiring for a fixed term of employment. The trial judge found that this discussion was respectful and friendly. He also found that this call relied upon the above union bylaws to terminate Evans that day without notice.

   Evans retained counsel who on January 3 wrote requesting a severance agreement of 24 months, the first 12 of which would be continued employment. This became an important issue in the legal analysis which followed as it represented a voluntary offer by Evans to continue in the employ of the local and hence negated any later allegations of an unworkable environment, apart from issue as to the audit which later followed.

   Negotiations continued. The union had continued to pay Evans his salary and benefits during this period. Union counsel, O’Grady, had insisted that the January 2 letter was not intended as “termination without notice”. During the period of negotiations, Evans had requested a settlement which would allow him to retire and for his spouse to replace him as business agent. In reply, the union had prepared a draft contract for his spouse, which was never resolved.

   Evans commenced proceedings on January 27, 2003. In March the union requested KPMG to perform an audit of the Whitehorse office. The trial judge found that Evans felt threatened and demeaned by this. Letters from union counsel dated April 3, May 5 and May 23 were all prefaced as regarding the “KMPG report”.

   On May 23, union counsel requested Evans return to active employment no later than June 1 and to serve the balance of a notice period of 24 months. This marked the first occasion that the union had acknowledged a notice period of 24 months. The letter continued to state that should Evans fail to do so, such would be just cause for termination and he would be terminated without further notice.

   Ironically, such conduct in later cases has been determined to be unfair conduct sufficient to negate the requirement to return to mitigate, which is reflective of the distaste for the decision.

   Evans counsel replied by suggesting that this position of the employer was intended to accept Evans’ initial offer of 24 months compensation and further that the status of Ms. Evans was also to be resolved. Union counsel replied by stating that there were no plans to adversely treat Ms. Evans, but there was no plan to negotiate any special arrangements with her.

   Evans counsel, in turn, agreed Evans would return to work provided that the termination letter of January 2 was rescinded. A fellow business agent in Prince George, Ron Owens, was also terminated on January 2 and re-instated January 16. His letter of termination was rescinded. This request was refused. On June 2, union counsel wrote to the plaintiff counsel advising Evans was terminated for cause.

   The last letter from union counsel stated that the union would assert Evans had failed to mitigate by returning to work.

   The Court of Appeal and the Supreme Court later both noted as a significant fact that Evans had always been prepared to resume his former job and the later alleged concerns were not raised in the negotiations. ¹ Evans