(ADAM PROSKIW / iNFOnews.ca)

A Kelowna man who was fired from his job without due cause has won a legal battle with his old employer which will now have to cough up more than $100,000 in a case that highlights the disparities in B.C.'s employment laws.

According to a Jan. 27 B.C. Supreme Court decision, Brian James Oliver Koski had worked for Kelowna IT company Terago Networks for 13 years before he was dismissed from his $100,000 a year position without cause and without notice in November 2019.

The company gave the former client manager $15,277 in severance, roughly eight weeks pay which was the legally required amount under the province's Employment Standards Act.

However, Koski sued his former employer and Justice Dennis Hori ruled he was entitled to $102,670 – the equivalent of 13 months pay.

The case highlights the difference between what employers are legally mandated to do under the province's Employment Standards Act, but what the courts, following different laws, see as reasonable compensation. 

University of British Columbia Peter A. Allard School of Law assistant professor Bethany Hastie said the judgement was a "very clear example" of the increasing differences between what employees are entitled to and what they can get if they have the means go to court.

Hastie said the case demonstrated that the Employment Standards Act, needed to be amended.

In British Columbia there are two sets of legislation that govern labour laws.

Companies have to follow the Employment Standards Act, which stipulates an employee can be fired without cause as long as they are given severance pay, which is calculated on length of service. The maximum amount a company has to pay is eight weeks severance, as in this case.

However, an employee with the finances, can take their former employer to the B.C. Supreme Court which assesses the dispute using the common law principle that governs wrongful dismissal.

In Koski's case, there is an $87,393 difference between what the Employment Standard Act said was acceptable and what the common law said was acceptable.

"The disparity and the significance of the disparity between the (Employment Standards Act) governing notice periods and the common-law principals governing notice periods… at a minimum it clearly needs to be revisited," Hastie said. “It would be very much in the interests of advancing worker rights and protecting worker rights to increase the length of service… and to bring them more in line with the common law.”

According to the decision, Terago Networks does not dispute that Koski was dismissed without cause but once in court argued the appropriate period of notice should be 10 months salary. Koski argued for 16 months.

The Justice is then left to decide the appropriate period of notice, and therefore the number of months salary that should be paid, weighing up the circumstances of this particular case.

Factors such as age, and how easy it will be to regain similar employment, as well as how quickly a dismissed employee finds another job all come into place.

“In this case, Mr. Koski was a 13-year employee of Terago. He was the relatively young age of 38 when the termination occurred, so age is not a factor that warrants a longer notice period,” Justice Hori said in the decision. “A person of Mr. Koski’s age, with the background he has in network support and information technology services, should have no exceptional impediments to finding alternate employment.”

However, the Justice said as this was the only job Koshi had had since completing formal training he did not have as much experience as others in his field.

The Justice also said Koski had to take reasonable steps to find new employment and maintain his income, although the onus was on Terago to prove that he'd failed to find work, something the company did not succeed in doing.

Koski also argued he was owed bonuses as part of his monthly pay. The company argued Koski had to be "actively employed" to get bonuses.

However, Justice Hori said the company's bonus policy created ambiguity and didn't eliminate Koski's "common-law rights to bonus payments."

By working out an average based on previous bonuses the Justice ultimately calculated that Koski was owed 13 months salary at $102,670.

The decision doesn’t say how much Koski spent on lawyers but the case does highlight the how different economic groups have different access to justice in the province.

“And (individuals) most in need of that severance money, maybe (the) least well positioned to seek that remedy in court,” Hastie said.

Hastie also said bringing the Employment Standards Act inline with common law would mean fewer cases like this having to be dealt with at the Supreme Court.

The Justice did not make a ruling on costs giving the parties 30 days to come to an agreement. If they can't agree, it could lead to more court time.

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