Firing a new hire without a written contract could cost employers far more
When Waboshi Nakihimba completed three shifts at a Saskatchewan commercial kitchen in December 2022, nobody predicted what would follow.
On February 18, 2026, a three-judge panel of the Court of Appeal for Saskatchewan, in reasons written by Justice Keith D. Kilback, dismissed his appeal while confirming that entitlement to statutory notice under employment standards legislation and entitlement to reasonable notice under a contract of employment at common law are distinct rights.
The hire, the holiday, the dismissal
Nakihimba was hired by Madazen Foods Inc. on December 20, 2022, to work in its commercial kitchen. There was no written employment agreement. He completed three shifts totalling 19 hours before the company closed for the Christmas break.
He did not return on January 3, 2023, as scheduled, claiming illness. Diagnosed with a urinary tract infection on January 6, he emailed company principal Darren Zawryucka on the evening of January 14 to explain his absence. On January 16, while Zawryucka was vacationing in Central America, Nakihimba received a dismissal email for failing to attend work.
Nakihimba then filed with the Employment Standards Division and recovered approximately $300 in unpaid wages. A discrimination complaint to the Saskatchewan Human Rights Commission was dismissed. He then sued for wrongful dismissal and other claims, seeking over $490,000 in total.
Two rights, not one: the finding that changes the calculus
The Court of King's Bench had struck the entire claim partly on the basis that Employment Standards had already resolved the matter. Justice Kilback corrected that reasoning directly, finding that the lower court erred in determining the statement of claim was an abuse of process on those grounds.
"Entitlement to statutory notice under employment standards legislation and entitlement to reasonable notice under a contract of employment at common law are distinct rights," he wrote.
Even without statutory notice entitlement under Saskatchewan law (Nakihimba had not met the required 13 consecutive weeks of service), he retained the common law right to pursue pay in lieu of reasonable notice. The Court confirmed there was no evidence that this claim had been determined by Employment Standards.
When the numbers stop making sense
Despite identifying a genuine legal gap, the Court upheld the striking of the claim. Nakihimba sought $400,000 in punitive damages, $75,000 for mental distress, and a range of personal expenses including groceries, bedding, a pawned video game console, and $250 borrowed from his sisters.
The lower court judge, quoted in the appeal decision, was blunt. Referring to the statement of claim's listing of "$400,000 as punitive damages" among 13 items of relief, he wrote: "This is simply absurd. Keep in mind that Mr. Nakihimba worked 19 hours for $16 an hour. His total earnings, leaving aside any right to additional notice, would be $304."
The Court of Appeal agreed the action was vexatious. It found that "as he had framed the action, Mr. Nakihimba was not seeking to enforce a true legal claim for pay in lieu of reasonable notice. Instead, he was seeking damages that bore no relationship to the nature and length of his tenure or the manner and circumstances of his dismissal having regard to the Bardal factors."
