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Manufacturing

NBCA upholds dismissal for cause where supervisor repeatedly viewed pornography on work computer

Jurisdiction: - New Brunswick
Sector: - Manufacturing

In Backman v. Maritime Paper Products Limited, a body corporate, 2009 NBCA 6, the New Brunswick Court of Appeal upheld the dismissal for just cause of a supervisory employee who repeatedly viewed internet pornography on his work computer. In doing so, the court reveiwed the law relating to the doctrine of condonation.

Background

At the time of his dismissal, the supervisory employee had 14 years of service and was earning a salary of $53,000 per year.

The employer had implemented an "Acceptable Use Policy" in 2002 relating to email and internet use. It prohibited the viewing of unprofessional, harassing, offensive or obscene material on company equipment. 

The employee had received written warnings in 2002 and 2003 for accessing pornographic websites. The second warning stated in clear language that any further incidents "will result in the immediate termination of your employment".  read more »

Notice period reduced on basis employee might find new employment after trial but before end of notice period

Jurisdiction: - British Columbia
Sector: - Manufacturing

In the Jamieson v. Finning International Inc. 2009 BCSC 861 wrongful dismissal case, the 53 year old former employee had 20 years of service and had been the Millyard Systems Manager when his employment was terminated due to 'economic events". The company offered him a severance package based on a 12 month notice period, which he rejected.

The BC Supreme Court awarded him a notice period of 19 months, but reduced it by one month in consideration of the fact that the legal action had been pursued by way of a summary trial just 6.5 months after the employee had been dismissed and the employee might find new employment before the end of the 19 month notice period

Damages

The parties were in agreement that the employee's compensation over the notice period should be based, among other entitlements, on $84,000 in base salary and a $10,920 annual bonus.  read more »

Commissioned sales consultant operating through own corporation entitled to reasonable notice of termination

Jurisdiction: - Ontario
Sector: - Manufacturing

In Braiden v. La-Z-Boy Canada Limited, 2008 ONCA 464, the plaintiff, Braiden, had worked for La-Z-Boy Canada Limited for almost 23 years as a furniture sales consultant when La-Z-Boy ended the employment relationship. 

Termination was effected pursuant to a 60-day notice provision in an agreement between La-Z-Boy and Gordon Braiden Sales Inc., a corporation owned by Braiden. The agreement expressly stated that Braiden was an "independent contractor".

The trial judge ruled that:

  • given the extent of La-Z-Boy's control over Braiden's functions and activities, an employer/employee relationship existed between La-Z-Boy and Braiden. 
  • the 60-day notice provision in the agreement was null and void. 
  • the reasonable notice period was 20 months, in light of Braiden's age (53) and years of service to La-Z-Boy.

The Ontario Court of Appeal upheld the trial judge's decision.

Discoveries must occur before defendants get particulars of claim involving confidential info, breach of fiduciary duty

Jurisdiction: - British Columbia

Mr. McKay resigned from the plaintiff VSM in September 2007 after 19 years of employment.

Before leaving VSM, he signed a release in which he acknowledged that he owed a fiduciary duty to VSM and that VSM would suffer irreparable harm if its confidential or unique information was disclosed without authorization.

Mr. McKay then commenced employment with VSM's competitor, Elekta.

VSM subsequently sued Mr. McKay and Elekta, alleging that they conspired to use confidential information to obtain an unfair competitive advantage and that Mr. McKay breached his fiduciary duty.

In response to the 54-paragraph Statement of Claim, the defendants filed a one paragraph Statement of Defence and then brought a motion seeking "particulars" of the claim. The Defendants' position was that they needed the particulars to file a responsive Defence and to delineate the issues at trial.

The court, agreeing with the plaintiff, ruled that the defendants' motion should be adjourned until the plaintiffs had conducted its Examinations for Discovery. If the defendants still wanted particulars at that time, they would be at liberty to re-apply.  read more »

Appeal Court finds outsourcing did not trigger severance provisions in Ontario's Employment Standards Act

Jurisdiction: - Ontario

In Abbott v. Bombardier Inc., 2007 ONCA 233, the Ontario Court of Appeal ruled that an outsourcing situation did not trigger the severance pay provisions in the Ontario Employment Standards Act, 2000.

In doing so, the court upheld the decision of the motion judge (2005 CanLII 63771 (ON S.C.)). The motion judge had determined that:  read more »

The legal standard for dismissal of a probationary employee

Jurisdiction: - British Columbia
Sector: - Manufacturing

What is the standard for dismissal of a probationary employee? In Jadot v. Concert Industries Ltd., 1997 CanLII 4137 (BC C.A.), the BC Court of Appeal made the following observations:

The standard for dismissal of a regular employee is just cause; for a probationary employee the standard is suitability: see Pathak v. Royal Bank, 1996 CanLII 2130 (BC C.A.)...In this case, Concert Industries dismissed the appellant because its officers concluded that the appellant was not a suitable candidate for long-term employment.  read more »