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Wrongful Dismissal

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. 

Secret recordings of employer found to constitute misconduct

Jurisdiction: - Manitoba
Sector: - Agriculture

IHart v. Parrish& Heimbecker, Limited, 2017 MBQB 68, the Manitoba Court of Queen's Bench considered whether an employee's secret recordings of meetings with management constituted misconduct. The court found they were, and framed the recordings as a breach of the employee's duty of confidentiality and privacy obligations. 

Most plaintiff lawyers will agree that secret recordings of meetings are a common occurrence. While there are decisions dealing with the admissiblity of secret recordings for evidentiary purposes, there has been little guidance on the potential use of such recordings by the Employer to establish discipline, including perhaps after-acquired cause.

BC Court of Appeal affirms medical evidence not required to prove aggravated damages

Jurisdiction: - British Columbia

In Lau v. Royal Bank of Canada, 2017 BCCA 253, the British Columbia Court of Appeal overturned a $30,000 aggravated damages award attached to a wrongful dismissal judgment. During the initial trial the plaintiff gave evidence of the effects the termination had on his mental well-being but presented no medical evidence to substantiate his claims of mental distress. The court found the plaintiff was not harassed, scolded or or otherwise mistreated, and his testimony did not provide a sound basis for finding he suffered injury beyond the hurt feelings and distress that accompany any termination.

This decision affirms several important points surrounding mental distress claims in wrongful dismissal actions: actual bad faith conduct is a critical element of an award of aggravated damages; mental distress claims do not need to be accompanyed by proof of a psychiatric illness; and a plaintiff's own testimony absent medical corrobation is a valid consideration for the court. 

Probation clause could not be relied on where employment offer rescinded

Jurisdiction: - British Columbia
Sector: - Media

In Buchanan v. Introjunction Ltd., 2017 BCSC 1002, the BC Supreme Court ruled that a defendant could not rely on a probation clause to justify early termination where the offer of employment was rescinded after the contract was entered into, but before the official first day of employment. The court found that the probation clause had not yet taken effect as employment had not started. Additionally, there was no means for the employer to have assessed the employee’s performance and terminated them for lack of suitability. The court awarded the plaintiff damages of six weeks’ salary. 

Employee failed to mitigate by retraining rather than apply for comparable roles available at former employer

Jurisdiction: - Ontario
Sector: - Manufacturing

In Benjamin v Cascades Canada ULC, 2017 ONSC 2583, a decision issued on April 27, 2017, the Superior Court of Justice - Ontario found that the plainitff former employee, Benjamin, failed to reasonably mitigate his damages by choosing to retrain rather than apply for the comparable positions available to him at his former employer, Cascades.

Specifically, the court stated:

[161]      It is not contested that there were comparable jobs available for Benjamin to seek at Cascades, given the comparable remuneration and his work experience as an unskilled general labourer. It is not contested that Benjamin "could have" procured any of the three available comparable positions.  read more »