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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 for handing 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 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.