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Relevant links about employment lawTERMINATION JUSTIFIED – GM CHARGED PERSONAL EXPENSES TO COMPANY
The court concluded: Although the total amount of the Parksville restaurant dinner and breakfast receipts (approximately $250) was relatively small, the misconduct went to the very root of the plaintiff’s employment relationship with the defendant. He was in the most senior management position at the defendant. His position commanded a high level of authority, responsibility, and trust. He breached that trust by submitting false expense receipts and thereafter being untruthful about them when given an opportunity to explain them on July 11, 2022. Moreover, he failed to “come clean” when he had a second opportunity to do so during the meeting on July 13, 2022. His conduct was such that the defendant’s loss of faith and trust in him was justified.
read moreEMPLOYEE’S REFUSSAL TO RETURN TO WORK – FAILURE TO MITIGATE
[112] …. in the circumstances of this case, a reasonable person in Ms. Blomme’s position would have accepted Princeton’s offer. Although the specific terms of her re-employment were not set out in Mr. White’s October 8, 23, and 26 emails, it was incumbent on her to at least explore the option of returning to work. Ms. Blomme was being asked to return to the same position, salary, and benefits, which had never been cut off: …. There was no evidence to support that she would be returning to an atmosphere of hostility, embarrassment, or humiliation. ….
read moreEMPLOYMENT STANDARDS DECISION DID NOT BAR THE PLAINTIFF FROM PURSUING WRONGFUL DISMISSAL ACTION
The Court found that there were significant differences between the Employment Standards Branch proceeding and the action action before the Court, which required a trial. The purpose of the Employment Standards Act was limited. In the circumstances, to apply issue estoppel would prevent the plaintiff from pursuing his claim—a claim involving significantly more in damages than he could receive in the Employment Standards process. The Court concluded that it would be unjust to apply the doctrine of issue estoppel. Justice requires that the plaintiff be entitled to pursue his claim for wrongful dismissal in court.
read moreFAMILY STATUS UNDER BC HUMAN RIGHTS CLARIFIED – CHANGE OF TERMS OF EMPLOYMENT NOT REQUIRED
The Court concluded that for purposes of assessing conflicts between work requirements and family obligations, prima facie discrimination is made out when a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation. To put this test in terms of Moore, to establish prima facie adverse impact discrimination as a result of a conflict between work requirements and family obligations, an applicant must establish that their family status includes a substantial parental or other duty or obligation, that they have suffered a serious adverse impact arising from a term or condition of employment, and that their family status was a factor in the adverse impact.
read moreTermination for “carwash” contrary to city policy not proportional
The Court concluded that the City did not have cause. The Court found that the “misconduct was not inherently dishonest or deceitful. [He] did something he knew was wrong. His misuse of the municipal wash facility only became known because someone saw him do it. However, he did not steal from the City, and he did not lie to his supervisors” (para. 57). In McKinley v. BC Tel, 2001 SCC 38, the “Supreme Court of Canada set out a contextual analysis for determining the existence of just cause for dismissal. The Court underscored the need for proportionality in terms of striking a balance between the employee’s misconduct and the sanction imposed” (para. 31).
read moreTermination Clause Not Vague and Unenforceable – Great Care Required When Drafting Employment Contracts
[22] I find the Termination Clause to be clear. It states that upon termination without cause, Ms. McMahon would receive the greater of, under subparagraph (a), notice or pay in lieu of notice prescribed in the ESA and, under subparagraph (b), two weeks or more notice or payment in lieu of notice based on base pay only. The use of the word “and” in between clauses (a) and (b) does not detract from the ordinary meaning of the words “greater of” which precedes these paragraphs, being that Ms. McMahon would be entitled to the greater of the notice or pay in lieu of notice provided for in each of those options.
[23] With respect to the word severance, the Termination Clause is clear in that severance is used to define the notice Ms. McMahon would be entitled to under subclause (b) only. The defined term severance follows immediately at the end of subclause (b). As a result, the fact that severance under subclause (b) only includes payment of base salary for a minimum of two weeks does not offend the ESA. Simply put, Ms. McMahon is entitled to notice under whichever of the two options is better for her. I do not find that to determine her entitlement to notice or pay in lieu of notice requires that Ms. McMahon would be required to perform complex calculations, as she alleges.
read moreEmployment Contract Silent About Group Terminations
The Court’s reasoned that the purposes of s. 63 and s. 64 were different. First, “in order to oust the common law entitlement to reasonable notice, a contractual term must meet the minimum statutory requirements set out in s. 63. The s. 64 notice requirements, being additional statutory rights not found in the common law, do not establish the minimum standard that is required to oust an employee’s common law entitlement to reasonable notice.” (Para. 40). Second, the fact that the termination clause was silent with respect to group terminations did not make the clause unenforceable: see Nemeth v. Hatch Ltd., 2018 ONCA 7, and Roden v. Toronto Humane Society, 2005 CanLII 33578 (ON CA). The Court noted: “the Termination Clause is similar to the clauses in Roden and Nemeth in an important way: like the termination clauses in those decisions, the Termination Clause does not purport to expressly exclude any statutory notice requirements. In my view, the similarity is most instructive and distinguishes this case, as Roden and Nemeth were distinguishable, from the decisions in Machtinger, Shore, and Rutledge v. Canaan Construction Inc., 2020 ONSC 4246 [Rutledge], a third decision relied on by Mr. Forbes.” (Para. 60). In Nemeth, the Ontario Court of Appeal “concluded that the silence on severance pay did not denote an intention to contract out of Ontario’s employment standards regarding additional severance pay, and thus the termination clause was not void.”
read moreWrong Way to Terminate and Litigate Lands Airline in the Soup
The Court found that while Chu’s length of service, as an employee, was eight years, his services as a contractor should not be ignored. He was 68 at the time of termination. There was no reasonably comparable employment available to the plaintiff and he ended up working as a DoorDash delivery driver. In the circumstances, 20 months’ notice was appropriate.
The Court concluded that CSA’s conduct met the threshold for punitive damages. CSA’s conduct could comfortably be described as “harsh, vindictive, reprehensible and malicious”, as well as “extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment.” The conduct included the employer’s conduct throughout the litigation, making “vicious, vindictive, and unfounded allegations that it knew or ought to have known could not be supported,” and compelling the Plaintiff to make “multiple pre-trial applications to enforce compliance with its obligations as a litigant,” designed to frustrate the Plaintiff’s claim. The compensatory damages were relatively modest, approximately $108,000. In the result, the Court awarded $100,000 in punitive damages.
Ontario Court of Appeal: COMPANY TERMINATED INDEPENDENT CONTRACTOR AGREEMENT – DUTY TO EXERCISE RIGHT TO TERMINATE IN GOOD FAITH
The Court of Appeal noted (para. 17) that the trial judge referred to evidence of the “respondent’s understanding that there would be an element of good faith in the exercise of the provision by the appellant, and found that this understanding was supported by the law from the Bhasin decision of the Supreme Court. He concluded that the appellant breached the ICA by terminating it in the way and the circumstances that he did.” The Court went on and stated: “I agree that although the appellant had a facially unfettered right to terminate the contract, it had an obligation to perform the contract in good faith and therefore to exercise its right to terminate the contract only in good faith.” [para. 18, underlining added.] The plaintiff had disclosed his criminal conviction prior to entering into the contract. Accordingly, the termination of the ICA one month later was not a good faith exercise of its contractual discretion. The ONCA decision was followed by the BC Supreme Court in Lightstream Telecommunications Inc. v. Telecon Inc., 2018 BCSC 1940, 2018 CarswellBC 2987, 301 A.C.W.S. (3d) 293, 87 B.L.R. (5th) 130.
read morePub manager with 23 years service terminated during Covid – Contract not frustrated – was entitled to 20 months notice
A 56-year-old pub manager with 23 years of service was laid off when the pub closed due to Covid restrictions. Unlike other pubs, it did not re-open when restrictions were relaxed. The Court did not agree that the employment contract had been frustrated. The Court concluded “having regard to the appropriate Bardal factors applied to Mr. Fanzone’s circumstances, the appropriate notice period required to be given by the Pub for the termination of Mr. Fanzone’s employment without cause was 20 months” (pare. 35). Despite the pub’s reprehensible conduct, which included a fabricated claim of theft with respect to vacation pay, the Court did not award punitive damages.
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