Canadian province's supreme court orders Dell to pay nearly $500,000 to sales rep fired in his twilight years

BC judge lengthens notice period

The British Columbia Supreme Court has ordered Dell Canada to pay a former sales representative nearly C$500,000 in damages after ruling he had been wrongfully terminated.

The suit was filed [PDF] by Vancouver resident James Hawes. Dell Canada fired Hawes on March 25, 2020, less than two weeks after British Columbia entered a province-wide state of emergency.

The sales rep had 23 consecutive years of service under his belt, having initially joined Data General, which was acquired by the now Dell-owned EMC Corporation in 1999. At the time of his firing, he was 64.

Hawes claimed Dell Canada failed to provide a reasonable notice period, which he determined to be 24 months, based on his age, infirmity, and a jobs market flooded with newly fired sales executives. In court documents, counsel for the plaintiff cited a “recent and very serious injury” to his leg and knee which would hamper his ability to find suitable work.

Complicating matters, he was also bound by a one-year non-compete and non-solicitation agreement.

Although Dell offered a severance package that included a payout of C$40,769.23 ($33,464, £23,756), this was fraction of Hawes’ earnings, according to court documents [PDF]. In the period between 2017 and 2019, his average annual earnings amounted to $392,249.60, taking into account performance bonuses. Dell’s proposed package also lacked pension contributions, and would have seen his life and disability insurance coverage terminated.

In its response [PDF], Dell countered that as Hawes’ previous average salary was heavily influenced by performance, future payouts were not guaranteed, and were likely to be impacted by the COVID-19 pandemic.

It also accused Hawes of disparaging the company to customers, and of acting in bad faith by discussing its settlement negotiations in a public forum. It pointed to a LinkedIn post where Hawes purportedly wrote: “Working on a massive settlement with Dell.”

Finding for the plaintiff, the Honourable Madam Justice Iyer ordered Dell to pay Hawes C$473,238 (about $388k, £275k), plus costs.

This figure was calculated based on a reasonable notice period of 21 months (three fewer than originally requested) and projected monthly earnings of C$24,792 ($20k, £14.4k).

In setting on the 21-month mark, Justice Iyer factored into account Hayes’ age, the non-compete and non-solicitation clauses in his contract, and the fact that he had been fired at the outset of the pandemic.

Fourteen months on, Hawes has yet to find gainful employment. Although the court found that he had not made a “constant and assiduous effort,” Justice Iyer did not factor this into her ruling, saying that Dell had failed to establish the matter in court, or provide evidence of relevant job opportunities.

We have asked Dell for comment. ®

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