Alberta Employment Law Update: Winter 2013

IN THIS ISSUE

Employee's Mitigation. The Alberta Court of Queen's Bench deducted two months from a 24-month notice period for the potential that a 50-year-old professional engineer would be able to mitigate his losses after judgment. The Court reasoned that, notwithstanding the plaintiff employee's attempts to mitigate his loss had not been successful in the ten months following his dismissal, it remained a realistic possibility he would find suitable employment within the notice period. Solicitation and the Fiduciary Relationship. The Alberta Court of Appeal upheld a trial decision that a sports agent owed a fiduciary duty to his employer, and breached it by indirectly soliciting clients immediately following his dismissal. The employee's status as fiduciary stems from the responsibilities entrusted to him by the employer and his resulting ability to affect the economic interests of the company. The Court also held that termination of employment does not automatically relieve an employee of their fiduciary obligations. SUMMARY OF DECISIONS

Hansen v Altus Energy Services Partnership, 2010 ABQB 820, [2011] AWLD 682 ("Hansen")

Hansen is an Alberta decision where the Court of Queen's Bench concluded a deduction of two months, from an award of 24 months, was appropriate as there was "certainly a realistic possibility that Hansen will find alternate employment within the notice period provided for" (at para 54).

The plaintiff in Hansen was a 50-year-old professional civil engineer who had worked for Altus Energy Services Partnership ("Altus") and its predecessors for 29 years. Over time, he had risen to the position of General Engineering Manager for which he received a salary of $160,000, a company vehicle, and an annual bonus. Leading up to his dismissal, Altus had reduced the hours of operation and the salaries of its employees by 20% and Mr. Hansen had accepted this reduction with the expectation that such reduction would only be temporary. Although Mr. Hansen's hours returned to their original level later on, his salary remained at the reduced level, notwithstanding a significant promotion. Despite several attempts to speak to Senior Management, his salary was never restored to its original amount and, soon after his promotion, Mr. Hansen was dismissed without cause or notice.

The Court awarded a notice period of 24 months in light of the plaintiff's years of service, his age, and his expertise. Justice J. H. Goss also concluded that taking...