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Failure to investigate employee’s story leads to finding of wrongful dismissal

Jurisdiction: - British Columbia
Sector: - Manufacturing

In Tymko v. 4-D Warner Enterprises Ltd., 2018 BCSC 372, the BC Supreme Court ruled on a wrongful dismissal case arising out of a train derailment. The defendant alleged the plaintiff, a switchman, did not properly clear the tracks. The plaintiff claimed he did not receive appropriate training on what to do in the particular situation that led to the derailment.

Part of the plaintiff's story was that his radio must not have been working as the driver did not respond to his verbal cues to stop the train. The defendant alleged the plaintiff manufactured this excuse to cover up his neglect of duties.

The trial judge expressed reservations about the plaintiff's version of events, but found that the defendant's failure to investigate this ‘important claim’ must result in the plaintiff being given the benefit of the doubt.  read more »

Possession of marijuana sufficient to establish termination

Jurisdiction: - Newfoundland & Labrador
Sector: - Oil & Gas

The impending legalization of marijuana has generated a consistent buzz of articles and discussion on the implications for the workplace. As a potential harbinger of things to come, the Court of Appeal of Newfoundland and Labrador recently reversed a judgment on judicial review and upheld an arbitrator’s finding of just cause for possession of marijuana.

In Terra Nova Employers' Organization v. Communications, Energy and Paperworkers Union, Local 2121, 2018 NLCA 7, the court considered the circumstance of an employee found with a small amount of marijuana in his pocket during screening prior to boarding a transport helicopter to an offshore petroleum platform. The grievor expressed disbelief and surprise at the presence of the marijuana, but the employer terminated the grievor for breaching policies prohibiting possession of drugs and alcohol in the workplace. The arbitrator upheld the dismissal, citing the safety sensitive nature of the work and the need to establish a general deterrent.

On judicial review the court reversed the decision,incorporating the concept of mens rea into the employee’s act of possession, and finding that the employee could not be terminated for unintentionally breaching the policy.  read more »

Fabricating reasons for dismissal leads to large damages award

Jurisdiction: - British Columbia
Sector: - Retail Trade

In Bailey v. Service Corporation International (Canada) ULC, 2018 BCSC 235, the BC Supreme Court rejected the employer’s argument that an employee had abandoned his employment, or that alternatively there was just cause for dismissal, when he absented himself for medical reasons for approximately 2.5 months.

The crux of the defendant’s argument was that even after the plaintiff was denied short-term sick leave coverage, he nevertheless continued to absent himself from work while also working full-time as a real estate agent.

The court rejected the claim that the plaintiff was absent without leave, finding that the defendant accepted he was taking unpaid time off work when it sent him an ROE request form and the plaintiff returned it indicating an intention to return to work.

The court also did not accept that the plaintiff had actually been working as a full-time real estate agent. It ultimately found that the defendant had looked for an excuse to dismiss the plaintiff due to his rather aggressive criticisms of management.  read more »

Ethics manager terminated for breach of trust

Jurisdiction: - British Columbia

In 2015, the BC Court of Appeal issued the decision Roe v. British Columbia Ferry Services Ltd., 2015 BCCA 1, in which it overturned a trial judgment which had found there was no just cause for the termination of a high level manager who handed out food vouchers to his daughter's volleyball team. The court emphasized the responsibilities and trust attached to the plaintiff's senior management position. Shortly thereafter, it issued a split judgement in Steel v. Coast Capital Savings Credit Union2015 BCCA 127, upholding the termination of a long-service employee with an unblemished record on the basis of a single incident of breach of trust. The decision rested mainly on the nature of the employee's position, which involved overseeing confidential materials. The recent trial judgment in Manak v.  read more »

BC Court rules on appropriate use of Fast Track litigation

Jurisdiction: - British Columbia

In the recent BC Supreme Court decision Ritts v. Bing Thom Architects Inc., 2018 BCSC 252, the court ordered a matter removed from the Fast Track process.

Rule 15-1 provides an expedited means for parties to pursue litigation. In this circumstance, the plaintiff filed the matter under Rule 15 and, when the defendant objected to the suitability of the action for the Fast Track process, the plaintiff responded by setting the matter down for a five day trial. 

The defendant argued the matter was not suitable for the Fast Track process as it met none of the requirements for fast-track litigation: the claim was not expressly limited to $100,000, the trial was set for more than three days, and the parties did not both consent to the process.

The judge found the process followed by the plaintiff was “clearly improper”, and ruled 15(1) did not apply to the action. This decision may provide some guidance for parties to expressley limit the action to $100,000 in the pleadings where they wish to use the Fast Track process but none of the other rules apply. 

Random drug and alcohol testing regime rejected as unreasonable invasion of privacy

Topics: - Drugs & Alcohol - Privacy
Jurisdiction: - British Columbia
Sector: - Mining

The recent arbitration award Teck Coal Ltd. (Fording River and Elkview Operations) v. United Steelworkers, Locals 7884 And 9346, 2018 CanLII 2386 again clarifies the relatively high hurdle employers must meet to impose random drug and alcohol screening in safety sensitive workplaces. 

The arbitrator affirmed the general arbitral consensus that employers must establish a workplace safety problem that is sufficient to warrant the intrusion of random testing, but that in doing so an employer may use evidence relating to workers falling outside of the bargaining unit, including workers represented by other unions at other worksites and also third party contractors.

In this case the arbitrator rejected the employer’s reliance on theoretical safety risks, and found the safety benefits were not proportional to the significant harms to employee privacy.  read more »

Punitive damages awarded against employee for theft

Topics: - Punitive Damages - Theft
Jurisdiction: - British Columbia
Sector: - Construction

In the recent case of Premium Weatherstripping Inc. v. Ghassemi, 2017 BCSC 2191, the court awarded damages against a shareholding General Manager and an employee who
conspired together to fraudulently remove products for resale.

The judgment included an award of punitive damages in the amount of $30,000 jointly and severally against the defendants. Unsurprisingly, the court dismissed the employee's wrongful dismissal counterclaim. 

SCC affirms employees can file discrimination complaints against workers from other companies

Jurisdiction: - British Columbia
Sector: - Construction

In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the Supreme Court of Canada affirmed that workers have the ability to file complaints of discrimination against individuals employed by other companies. 

In some industries it is common to have employees from multiple different contractors working on the same site. The effect of the SCC's ruling is to extend the obligations under the Human Rights Code to all fellow workers even where they are employed by other companies.