Nine Years, One Case of Protein Bars

The ESA threshold is high, and the employer is unlikely to meet it on these facts.

For termination pay, the statute requires wilful disobedience, wilful misconduct, or neglect of duty that is not trivial and has not been condoned by the employer. For severance pay, the statute requires wilful misconduct that disentitles the employee to severance. The employer bears the onus.

Apply the facts:

• Wilful? He says the goods were damaged stock headed for disposal. That is a plausible, non-culpable explanation, and the employer appears to have investigated only by watching a video and writing a letter.
• Trivial? A $45 case of product destined for the bin is at the low end.
• Condoned? He says supervisors routinely took damaged goods. If that practice existed, the employer has condoned the conduct and cannot rely on it. This is the strongest line of inquiry - find co-workers who will confirm the practice.
• Proportionality and investigation. No prior discipline, nine years of service, and no meaningful opportunity to respond before dismissal all work against cause.

Caveat on severance pay: statutory severance depends on the employer's payroll or headcount, not merely on the employee's service. Confirm the employer's size before promising a severance entitlement; termination pay is the safer claim.

Forum.

• Ministry of Labour claim: available within two years of termination, costs nothing, and recovers only the statutory minimums. It is slow - often many months - and the Ministry may decline or defer where a civil claim is pursued.
• Civil claim: because there is no written contract, there is no enforceable termination clause, so the common-law standard of reasonable notice applies in full. Nine years' service, age 52, a supervisory role, and limited re-employment prospects point to a notice period in the range of roughly seven to ten months - at $68,000 that is approximately $40,000 to $57,000. That exceeds the $35,000 Small Claims limit, so the claim belongs in the Superior Court. Electing to cap the claim at $35,000 to stay in Small Claims forfeits the balance; explain that trade-off explicitly.

Sequencing. He may not recover twice for the same loss. Realistically: pursue the civil claim, and reserve the ESA complaint for items the civil claim will not capture (unpaid wages, vacation pay, record-of-employment issues). Do not file both blindly in the same week - check the Ministry's deferral practice first.

Limitation. Two years from 6 February 2026. Diarise it; it is not urgent but it is not distant either.

He must mitigate, and the onus on failure to mitigate rests with the employer - but only after the employer raises it. Build the record now rather than reconstructing it later.

• Keep a job-search log: date, employer, position, application method, and outcome for each of the 14 applications. Screenshots and confirmation emails are better than a list.
• Keep the record of the one interview and any feedback.
• Note that a 52-year-old warehouse supervisor with no post-secondary education may reasonably be expected to widen his search geographically or consider a step down in pay; declining an objectively comparable offer would be used against him.
• Record any income earned since termination; earnings in the notice period are deducted from damages.

Advise on the demand stage. A demand letter setting out his service, age, the absence of any termination clause, the flawed investigation, and a specific notice figure is the cheapest route to resolution and simultaneously demonstrates mitigation efforts. Do not characterise the surveillance allegation as admitted or denied in writing until you have the video and the investigation file - request both before the limitation clock becomes the dominant pressure.