Category Archives: Labour Employment Law

BC Supreme Court Rejects Just Cause Allegation against Manager with Abrasive Management Style, Awards $50,000 Punitive Damages and $35,000 Aggravated

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Dan Gleadle      http://employmentlawvancouver.blogspot.ca/

Mr. Justice Goepel of the BC Supreme Court handed down comprehensive reasons for judgment on January 27, 2012 dismissing a just cause defence by the BC Liquor Distribution Branch in a wrongful dismissal damage claim by a senior manager.

Vernon v. British Columbia (Liquor Distribution Branch), 2012 BCSC 133 (CanLII)

Ms. Vernon had been employed by the BC LDB since age 19, for a period of 30 years, during which she was promoted from entry level positions to the role of Senior Store Manager in the Richmond Branch. She had a “rough and ready” management style, and had over the years functioned effectively in an environment that persons with modern sensibilities would find offensive. Her style involved swearing and directions to employees given in a manner which might be found offensive. A complaint was filed by an employee with particular sensibilities, and the LDB launched an investigation, followed by a summary dismissal.

Flawed Investigation

The court found that the investigation leading to the dismissal was flawed. So seriously flawed, in fact, that an award of both aggravated and punitive damages was granted.

The key aspects of the finding as to a flawed investigation were:

  • it was headed by another employee who, by reason of prior involvement with the dismissed employee, even in relation to recent HR disputes between the complainant and the manager, should not have been given the task of investigating
  • there was a “rush to judgment” which was apparently motivated by arbitrary deadlines dictated by employer policies as a quasi governmental organization
  • the investigator chose to speak mainly to persons critical of the plaintiff, and not to other employees who supported the plaintiff
  • the investigator was not a neutral, but self regarded as a prosecutor
  • when the investigator talked to others who were supportive of the manager, their comments were not accepted at face value, but rather challenged
  • the manager was confronted with a long list of accusations at a threatening meeting, without any sufficient warning of the accusations or even the reason for the meeting
  • no sufficient reason was given to warnings, or other discipline short of dismissal, or mandatory remedial courses, as the employer was apparently of the view that it did not have those choices, in error
  • the employee was left “in limbo” for an unnecessary and unreasonable period of time
  • those in charge of the investigation changed over time, with inadequate communication between those handing off responsibility, so that the person who concluded the investigation reported to those making the termination decision an inaccurate conclusion – that the manager denied all accusation against her, and thus was both untruthful, and incapable of training, as she did not accept any responsibility. This was found to be incorrect and an important failure
  • those in charge of the investigation failed to “take a step back” and put the allegations in their proper context, where the employee was a long service employee without any prior performance problems, and in fact a most credible work history

Just Cause

Judge Goepel followed well established precedent in his consideration of the question of whether just cause existed for summary dismissal.

He referred to the 2001 decision of the Manitoba Court of Appeal in Boulet, where a useful list of factors was set out for cause cases.

[285] In Boulet v. Federated Co-operatives Ltd. 2001MBQB 174, 157 Man.R. (2d) 256 aff’d 2002 MBCA 114, 170 Man. R. (2d) 9 (“Boulet”), McCawley J. summarized the principles applicable when cause is alleged at para. 3:

  1. Each case must be decided on its facts.
  2. An employer’s displeasure at an employee’s performance is not enough to warrant dismissal. There must be some serious misconduct or substantial incompetence.
  3. The onus of proving just cause rests with the employer and the standard of proof is beyond a balance of probabilities.
  4. The performance of an employee, especially one in a management position, must be gauged against an objective standard.
  5. The employer must establish (a) the level of the job performance required, (b) that the standard was communicated to the employee, (c) that suitable instruction and/or supervision was given to enable the employee to meet the standard, (d) the employee was incapable of meeting the standard, and (e) the employee was warned that failure to meet the standard would result in dismissal.
  6. Where the employee’s performance is grossly deficient and the likelihood of discharge should be obvious to the employee, warnings and reasonable notice are not required.
  7. While the standard of incompetence to warrant discharge for cause is severe, the threshold of incompetence necessary to warrant dismissal for cause is significantly lower where dismissal is preceded by many warnings indicating unsatisfactory performance.
  8. In considering whether an employer has provided adequate warning to an employee, where the dismissal is for repeated instances of inadequate work performance, the employer must show (a) it has established a reasonable objective standard of performance, (b) the employee has failed to meet those standards, (c) the employee has had warnings that he or she has failed to meet those standards and the employee’s position will be in jeopardy if he or she continues to fail to meet them; and (d) the employee has been given reasonable time to correct the situation.
  9. An employer who has condoned an inadequate level of performance by his employee may not later rely on any condoned behavior as a ground for dismissal.
  10. Condoned behavior is relevant if the employee fails to respond after appropriate warnings. Condonation is always subject to the implied condition that the employee will be of good behavior and will attempt to improve.

Aggravated Damages

The court awarded $35,000 in aggravated damages, recognizing that this head is only appropriate by way of compensation for losses experienced by the plaintiff, flowing from some sort of wrongful behavior on the part of the employer at the time of or in the manner of dismissal.

[369] Aggravated damages in wrongful dismissal cases are compensatory in nature. It is an implied term of an employment contract that an employer will act in good faith in the manner of dismissal: Beggs v. Westport Foods Ltd., 2011 BCCA 76 (CanLII), 2011 BCCA 76, 14 B.C.L.R. (5th) 1 at para 48.

[373] The foundation of the claim for aggravated damages is the manner of dismissal. The meeting of April 19, 2010, could not have been handled in a more insensitive manner. Ms. Vernon, a 30-year employee with an unblemished record, was summoned to a meeting where she was told her conduct was shameful and that she was an embarrassment to the LDB. When she asked for additional time to consider her position she was told she only had until noon on Friday because Mr. Branham was not prepared to wait around until 4:00 p.m. on a Friday to learn her decision. Having told Ms. Vernon that she was to be terminated, the LDB then suspended her without pay and left her in limbo from April 19 to May 31 when they finally got around to telling her she was fired.

[377] I find that the LDB’s conduct during the course of dismissal was unfair and unduly insensitive. I accept the evidence of Ms. Vernon and Dr. Phillips that the manner of dismissal caused Ms. Vernon mental distress over and above the normal distress and hurt feelings resulting from the dismissal itself. She is entitled to an award of aggravated damages.

Punitive Damages

The court awarded $50,000 by way of punitive damages – clearly distinguishing this head of damages as an award appropriate for other policy reasons, aside from compensation.

[381] Unlike aggravated damages (which are compensatory in nature), punitive damages are directed towards punishment. The leading authority remains Whiten v. Pilot Insurance Co.,2002 SCC 18 (CanLII), 2002 SCC 18, [2002] 1 S.C.R. 595 at para. 36(“Whiten”)

[382] The three objects of punitive damages are retribution, deterrence and denunciation. The Supreme Court of Canada has directed trial courts to approach punitive damages with caution and restraint and to resort to them only in exceptional circumstances: Whiten at para. 69.

[383] An award of punitive damages is rational only when compensatory damages do not adequately achieve the objectives of retribution, deterrence and denunciation:Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd.,2002 SCC 19 (CanLII), 2002 SCC 19, [2002] 1 S.C.R. 678 at para. 87.

[386] In this case, I have made an award of aggravated damages arising out of the insensitive manner in which Ms. Vernon was terminated. To award punitive damages for the same conduct would lead to double punishment for the same acts.

[387] There is, however, one exception. At the termination meeting of April 19, Ms. Ferrara told Ms. Vernon that if she agreed to resign, the LDB would provide her with a reference letter. While an employer is under no obligation to give a reference letter (Shinn v. TBC Teletheatre B.C., 2001 BCCA 83 (CanLII), 2001 BCCA 83, 85 B.C.L.R. (3d) 75), to offer Ms. Vernon a reference letter, conditional on her resignation, was reprehensible and departed to a marked degree from ordinary standards of decent behaviour. If Ms. Vernon’s conduct was sufficiently serious that the LDB had the right to summarily dismiss her without notice, it would have been improper for the LDB to give her a reference letter. To offer a reference letter as a carrot to resign, is, in my opinion, conduct which is properly the subject matter of retribution, deterrence and denunciation.

Summary and Conclusion

This decision will give employers cause for serious concern when considering the dismissal of long term managers for conduct which has been accepted as useful without complaint.

Employers will be well advised to avoid conduct in the course of investigations which might be seen as impartial, or heavy handed, particularly with long service employees.

The consequences of a finding of conduct meriting a punitive damage award are not just financial, and employers should consider the impact of their actions on employees, or risk unwanted outcomes.

Four Easy Ways to Get Fired

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http://employmentlawcanada.wordpress.com/

Here are four things that many employees do on a regular basis that could get them fired.  Some may be surprising.

1) Checking Facebook  – an employee is required to spend all of their working time working.  Shocking I know!  Using computers for personal purposes such as checking Facebook, your stock portfolio, or playing minesweeper can be considered time-theft, insubordination or disobedience and can be just cause for dismissal.

2) Questioning the Boss – challenging the boss’s directions, even if their decisions are bone-headed and destined to fail, so long as they aren’t illegal, can be cause for your dismissal.  Insubordination is particularly culpable if it is done in front of other employees, since this can seriously undermine the boss’ ability to control the workforce.  It is the boss’ company and she or he has the right to run it into the ground if they so choose.

3) Updating your Linkedin Profile/Blogging – if you are using linkedin to try to find a new job, or to take away customers for some private gain, that could be considered competing with your employer and acting against their interests.  It will be interesting to see a case make it to the courts over who owns the data in a linkedin account.  In general, employees don’t get to take their contact lists when they leave a company.  Linkedin and other cloud based electronic devices change the game in this regard.  If you blog, do so on your own time or with your employer’s express permission.

4)  Bragging in the Interview – everyone talks their best game in the job interview.  However, you had better be able to put your money where your mouth is.  Courts have held that employees who do not live up to the hype they put out in their job interviews can be terminated for this reason, without notice, in the early stages of the employment.  However, after a certain point the employer will be taken to have accepted any such shortcomings, and will be required to provide the requisite notice.

Canadian case law, such as McKinley v. BC Tel, [2001] 2 S.C.R. 161, states that each case is circumstance-dependant and must be judged in the context of the entire employment relationship.  Discipline imposed by the employer must be proximate to the seriousness of the improper employee behaviour.  Further, in most cases warnings must be given along with corrective measures the employee is to take, before such issues can be a proper basis for just cause.

British Columbia Privacy Commissioner Recommends Limits on Police Information Checks

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Employers who rely on police information checks to assess the suitability of prospective employees may now have to make do with less information.

By Rosalie Cress on May 2nd, 2014    http://www.bcemployerlaw.com/

In an investigation report released this month, the British Columbia Information and Privacy Commissioner made recommendations which will limit information disclosed by police departments in employment-related police information checks.

Until recently, police departments in British Columbia have included information about prior criminal convictions, outstanding charges, contact with the police during an investigation (e.g., as a suspect or witness), and apprehensions under the Mental Health Act in employment-related police information checks. These checks are done with the consent of the employee, for employers and employees who are not covered by the Criminal Records Review Act (“CRRA”) (previously discussed here).

The Commissioner found that, although these checks can be a valuable screening tool, the scope of information provided to employers – particularly mental health information and non-conviction information which has not been tested in court – was more than was necessary, and not in compliance with privacy legislation.

The Commissioner made the following key recommendations:

1.                Police departments should stop releasing mental health information in employment-related background checks.

2.                Police departments should stop releasing non-conviction information for positions where the employee is not working with children or vulnerable adults.

3.                Police departments should require employers to limit their requests for information about convictions to specific risk categories which are relevant to the person’s employment, such as Drugs and Alcohol, Sex, Violence and Theft and Fraud.

4.                Government should require that the centralized office currently responsible for processing criminal records checks under the CRRA undertake all record checks for vulnerable sector employees, not only for employers who receive provincial funding.

What this means for employers

The Commissioner’s recommendations will undoubtedly result in significant changes to the information available to British Columbia employers about prospective employees.  We of course recommend that all employers take a cautious approach to pre-employment background checks and collect only the type and amount of information reasonably required to start and manage the employment relationship. In addition, in the absence of broader police information checks, we recommend that employers who require pre-employment background checks take the following steps:

  • Carefully consider what information is necessary to assess the suitability of an employee and ensure a safe and secure workplace. The type of information will vary depending on your business and the employee’s work, including his/her responsibilities, the extent to which he/she works unsupervised or alone, and the identity of those with whom the employee comes in contact.
  • Conduct background checks only at the final stage of hiring, when making a conditional offer of employment. If necessary, provide the candidate with an opportunity to provide more details about a background check, to ensure the information you have collected is accurate before making a decision.
  • Ensure that background check information is kept in a safe and secure location and only shared with those who truly need to know.
  • Conduct comprehensive reference checks, and consider extended probationary periods, performance management, supervision and other measures to ensure a safe, secure and productive workplace.

We will keep you up to date on any legislative and policy changes which arise out of the report. The full investigation report, F14-01, is available at  www.oipc.bc.ca/report/investigation-reports.aspx.

Accommodating Family Status

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May 7, 2014   http://www.millerthomson.com
Stephen M. Torscher

The Federal Court of Appeal has ruled that bona fide childcare obligations are included under family status as protected grounds in the Canadian Human Rights Act. In two companion decisions released last week, Attorney General of Canada v. Fiona Johnstone and Canadian Human Rights Commission [2014 FCA 110] and Canadian National Railway v. Denise Seeley and Canadian Human Rights Commission [2014 FCA 111], the Court ruled that employers must accommodate to the point of undue hardship where a workplace rule interferes with the fulfillment of a childcare obligation.

Johnstone [2014 FCA 110]

In the first appeal, Johnstone, the complainant was an employee of the Canada Border Services Agency (“CBSA”). She filed a complaint to the Canadian Human Rights Commission (“CHRC”) after her request was denied to alter her shift schedule to coincide with available childcare arrangements in order to remain a fulltime employee. You can read more about the earlier decisions prior to the Federal Court of Appeal here: http://www.millerthomson.com/en/publications/communiques-and-updates/labour-and-employment-communique/february-13-2013

Refined Definition of Family Status

The Court rejected the argument from the Attorney General of Canada that family status should be limited only to the personal characteristic of whether or not one is part of a family or has a particular family relationship, and does not include any substantive parental obligations such as childcare obligations. The Court determined that prohibited grounds of discrimination generally address immutable or constructively immutable personal characteristics, and the types of childcare needs which are contemplated under family status must therefore be those which have an immutable or constructively immutable characteristic. Human rights protection should not be trivialized by extending to personal family choices such as participation in sports, dance classes, and volunteer activities. Parental obligations at issue are those which engage the parent’s legal responsibility for the child, such as childcare obligations, as opposed to personal choices.

Test for Discrimination on Prohibited Ground of Family Status

Earlier in the proceedings, a point of controversy was whether the court should endorse the “Campbell River test” which requires the complainant to show that the workplace rule results in a serious interference with a substantial parental or other family duty or obligation of the employee. The Human Rights Tribunal and the Federal Court rejected this test and stated that the question to be asked is whether the employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way.

The Court confirmed that the test to determine whether there is discrimination on the prohibited ground of family status is comprised of two parts: 1) a prima facie case of discrimination must be made out by the complainant; 2) the onus is then on the employer to show that the policy or practice is a bona fide occupational requirement, and that accommodation would amount to undue hardship for the employer.

After reviewing the criticism of the Campbell River test in the proceedings below, the Court determined that the first part of the test regarding whether a prima facie violation of the complainant’s family status occurs includes four parts. The complainant must show: (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. The analysis, especially for the third and fourth parts of the test, are contextual and highly fact specific.

In light of these refinements to the approach to family status, the Court analyzed Ms. Johnstone’s situation and found that she had in fact made out a prima facie case for discrimination. Since the appellant had not asserted a bona fide occupational requirement or advanced an undue hardship defence, the analysis of the Court then turned to the issue of remedy.

The Court altered part of the award for loss of wages to exclude a period of time where Ms. Johnstone took unpaid leave to accompany her husband in Ottawa. The Court also varied the judgment of the Federal Court to require CBSA to develop polices with respect to accommodating family status in consultation with the CHRC rather than developing policies satisfactory to Ms. Johnstone and the CHRC as originally ordered.

Seeley [2014 FCA 111]

In the companion case to Johnstone, Seeley [2014 FCA 111], the Court applied the principles and tests developed in Johnstone. Seeley and her husband were both employees of Canadian National Railway (“CN”). They lived near Jasper, Alberta where Seeley’s husband worked. In 1997, Seeley was laid off but remained on a recall list. In 2005, CN experienced a labour shortage and sought to recall Seeley to Vancouver. Seeley sought accommodation on the basis that it would be difficult for her to meet her childcare obligations if she accepted the position in Vancouver and it would not be feasible to leave the children with her husband as he faced the same childcare challenges that she did. Seeley’s seniority rights were forfeited and she was terminated after refusing the recall. At this point, Seeley filed a complaint with the CHRC.

The Tribunal rejected the Campbell River test preferring the approach in the earlier decisions in Johnstone. CN had not considered family status matters involving parental obligations and responsibilities as a protected ground of discrimination that necessitates accommodation. Thus, the Tribunal found that CN had refused to seriously consider Ms. Seeley’s situation and failed to meet the procedural component of the duty to accommodate. CN’s application for judicial review of the Tribunal’s decision was dismissed by the Federal Court.

On appeal, CN argued that Seeley was seeking to enforce her preferred childcare option and had not made reasonable efforts to explore childcare options in her own town, surrounding areas, or in Vancouver. The Court rejected this submission in large part because CN did not provide Seeley with information about her recall to Vancouver that she would have needed in order to make childcare arrangements in any event; she was simply told that she would have to report to the Vancouver terminal in two weeks. The Court further found that CN had failed to provide evidence that it had accommodated Seeley to the point of undue hardship and upheld the lower court’s decision.

Implications for Employers

Family status is a developing area of human rights law. Courts across the country have varied in their approach to defining family status and developing an appropriate test to determine when a prima facie case of discrimination has been made out.

Johnstone and Seeley are the latest decisions to address these issues. Employers must be aware that workplace rules and policies that result in a true childcare problem for employees are protected by human rights legislation and must be accommodated to the point of undue hardship. Employers would be well advised to review their policies and ensure that they have a process in place to comply with this legal obligation.