Court examines whether non-renewal of fixed-term employment contract constitutes dismissal requiring notice
A former employee commenced an action against his former employer and two individual supervisors for wrongful dismissal. The employee alleged his dismissal resulted from workplace discrimination, harassment, and racism on the part of the employer.
The employee claimed the employer acted in bad faith in connection with his termination and sought both general damages and punitive damages.
The employer brought a motion seeking summary judgment on the grounds that the employee was not dismissed but was a fixed-term employee whose contract was not renewed.
Employment history and contract terms
The employee immigrated to Canada as a refugee and began work with the employer in 2005. Between that time and early 2016, the employee worked either in a casual or part-time position. During this period, the employee's hours varied significantly depending on the time of year and availability of funding.
In early 2016, the employee began full-time employment via a series of fixed-term employment contracts varying in length, duties, pay, and work hours. The first of these fixed-term contracts began with a two-month term. The employee signed the contract, confirming he understood its terms and accepted them.
From then until early 2020, the employee's contract was renewed on roughly a yearly basis. Beginning in 2020, the employee accepted shorter fixed-term contracts necessitated by restrictions imposed during the pandemic. The 12-month fixed-term contracts resumed the following year. The employee continued on fixed-term contracts until his contract was not renewed.
Contract non-renewal and performance concerns
The last fixed-term contract entered into by the employee had a termination date set for the following year. This, too, provided for automatic termination. The employee accepted the terms of the contract and stated he had read them carefully.
A few months before the contract expiration, the employer received three written complaints regarding the employee's cancellation of a planned outing at the last minute. The complaints also included incidents of leaving children in his care unattended.
Given these performance issues, among others, it was decided among the executive director, the director of HR, and the board members not to renew the employee's contract. Shortly before the contract expiration, two supervisors met with the employee and explained that his contract would not be renewed due to performance concerns.
Human rights complaint and subsequent action
Shortly after his contract ended, the employee filed a complaint with the human rights commission. The employee alleged the employer and two individual supervisors discriminated against him based on colour, national origin, race, and social condition.
While allegations that fall outside the one-year limitation period were dismissed, the remaining allegations moved forward to adjudication.
These remaining complaints also focused on the employee's allegations of racial and social discrimination and harassment. Ultimately, the commission dismissed the remainder of the complaint for lacking merit. Contemporaneously with filing the commission complaint, the employee commenced the action.
Re-employment and settlement attempts
After the termination of his contract, the employee commenced employment with another organisation approximately seven weeks later. His annual salary at the new position was higher than his salary at the former employer.
To resolve a separate complaint alleging breaches of employment standards legislation, the employer made a payment to the employee totaling the equivalent of four weeks' pay.
Counsel for the employer later made an offer of further payment to the employee in exchange for discontinuance without costs. The employee rejected the offer and returned the cheque. The employer then filed a notice of motion seeking summary judgment.
Employee's non-compliance with rules
The employee failed to comply with procedural rules requiring a respondent to a motion for summary judgment to set out specific facts showing a genuine issue requiring a trial. The employee has not responded in any way to the motion for summary judgment. The employee has not filed any affidavit or other evidence in response.
The employee also failed to comply with rules requiring the filing of a written brief before the hearing. No brief was filed. When the action was commenced, the employee was represented by counsel. Later, the employee became self-represented.
While some latitude can be given to self-represented litigants, self-represented litigants are not relieved from the obligation of complying with procedural rules. The employee commenced his action pursuant to simplified procedure rules.
The employee was required to serve documents by specific deadlines. Despite several requests, the employer was required to bring a motion to compel delivery. The employee has yet to file any sworn evidence.
Court's analysis of fixed-term contract
The employer submitted that the employee was not dismissed but was on a fixed-term contract, which was not renewed. The employer argued that as a result, the employee was not wrongfully dismissed and is not entitled to reasonable notice. The employer relied on precedent involving a plaintiff employed for over 38 years under a series of contracts.
In that precedent case, the court considered factors such as gaps in employment between contracts, contracts of differing lengths and positions, and negotiated terms. In the present case, the evidence is that the employee worked through a series of different fixed-term contracts varying in length, duties, position, remuneration, and work hours. The evidence is that the fixed-term nature of the contracts was known and understood by the employee.
The employer's evidence also is that because the organisation is a non-profit relying on external funding for its operations, hours of work and availability of positions vary on a year-to-year basis. As a result, the organisation offers fixed-term contracts to most of its employees as a standard practice. This evidence stands uncontradicted by the employee.
Court's conclusion on dismissal
The court concluded that the employee was employed under a fixed-term contract which terminated automatically upon its expiration. The employee's contract was not renewed upon its expiration. The employee was therefore not dismissed.
The court stated that an employee whose contract is not renewed at the conclusion of a fixed-term contract is not entitled to reasonable notice. The case law indicates that the contract is simply terminated and neither party is under any obligation to continue the contract. The court found that the contracts were clear and comprehensive.
The court stated it is now abundantly clear that where an employment contract is for a fixed term, the employment relationship terminates at the end of the term.
The employer has no obligation to provide notice or payment in lieu of notice. The employee's employment ended when his fixed-term contract was not renewed. The employee was not terminated, wrongfully or otherwise, and is not entitled to damages for wrongful dismissal.
Mitigation of damages analysis
While the decision not to renew the employee's contract was motivated by performance and disciplinary issues, the employer did not allege or assert cause for termination. It simply did not renew the contract. Even if the employee was entitled to damages for wrongful dismissal, he has fully mitigated any losses.
The employee's employment ended on a specific date. The evidence is that he secured new employment approximately seven weeks later. His annual salary at the new position was higher than his salary at the former employer.
The employer made a payment equivalent to four weeks' pay. The employer later made a final offer intended to represent the remaining three weeks between when the employee left and when he started his new position.
In light of the post-termination payments and offer of payment, together with the significantly increased salary, it is clear the employee has fully mitigated his damages.
Issue estoppel and human rights allegations
The court agreed with the employer's assertion that the employee is barred from advancing human rights allegations on the basis of issue estoppel. The three preconditions for the doctrine are met: the same issue as one decided in a previous decision; a prior judicial decision which is final; and parties to the proceeding are the same.
The human rights allegations are essentially the same as allegations set out in the statement of claim. The commission exercises a judicial function. The commission decision is a final decision. The parties to the complaint before the commission encompass all the same parties in this action.
The court referenced a precedent where a plaintiff brought an action alleging constructive dismissal as a result of discrimination. Prior to commencing that action, she filed a complaint with the commission. The complaint had been decided and dismissed.
The court in that case stated that the issue of discrimination and harassment in the workplace had been adjudicated by the commission and must be seen as having been finally decided.
Summary judgment granted
According to the court, the facts of this case are similar to the precedent case. The human rights allegations in the employee's complaint to the commission are essentially the same as those upon which the present action is based. The harassment and discrimination allegations contained in the statement of claim are res judicata by way of issue estoppel. Once those allegations are removed, the employee's cause of action is effectively eviscerated.
Given the court's conclusions, the employee has no realistic path to success in this action. The court is satisfied there is no genuine issue requiring a trial. The court granted summary judgment in favour of the employer against the employee.
The court stated that, in its opinion, there is no genuine issue requiring a trial. The employer is entitled to summary judgment as against the employee. The motion for summary judgment is granted. The employer is entitled to costs.
