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Retail Trade

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 »

Aggravated damages awarded in absence of medical evidence

Jurisdiction: - British Columbia
Sector: - Retail Trade

In Cottrill v. Utopia Day Spas and Salons Ltd., 2017 BCSC 704, aggravated damages of $15,000 were awarded against a defendant for failing to be fair in its assessment of the plaintiff’s performance in the lead up to its decision to terminate her for cause.

This continues a recent trend in wrongful dismissal cases of aggravated damages being awarded for treatment seen by the court as unfair in the absence of medical evidence (see also Johnson v. Marine Roofing Repair & Maintenance Service (2003) Ltd., 2015 BCSC 472 for a similar result). 

SCC: Wal-Mart's decision to close recently unionized store in Quebec violated "statutory freeze" provisions

In United Food and Commercial Workers, Local 503 v. Wal‑Mart Canada Corp. 2014 SCC 45, a 5/2 majority of the Supreme Court of Canada ruled that Wal-Mart's decision to close a recently unionized store in Jonquière, Quebec violated the "statutory freeze" provisions found in Section 59 of the Quebec Labour Code.

The case headnote is as follows:   read more »

Female employee was participant / instigator of crude, ongoing sexual banter; harassment complaint dismissed

Jurisdiction: - British Columbia
Sector: - Retail Trade

In Kafer v. Sleep Country Canada and another (No. 2), 2013 BCHRT 289, the BC Human Rights Tribunal ruled that a female employee was participant in, and instigator of, crude and ongoing sexual banter and therefore dismissed her sexual harassment complaint against her employer, Sleep Country Canada.

In reaching this conclusion, the Tribunal Member stated the following:

[32] The Supreme Court of Canada has defined sexual harassment as "unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment": Janzen v. Platy Enterprises Ltd. (1989), 10 C.H.R.R. D/6205 at D/6227.

[33] In Mahmoodi v. University of British Columbia, [1000] B.C.R.T.D. No. 52 (Q.L.) the Tribunal set out the test for whether conduct is unwelcome. It stated:  read more »