Ted's Blog

Insolence, Insubordination And After-Acquired Evidence Of Just Cause

On November 9, 2021, the B.C. Supreme Court released its decision in the case of Golob v. Fort St. John (City), 2021 BCSC 2192.

The case concerned a wrongful dismissal claim against the City of Fort St. John by its former Deputy Fire Chief.

The City dismissed the plaintiff for what it alleged to be just cause. This followed an investigation into a report that the Deputy Fire Chief had been overheard making disparaging remarks about his superior, the Fire Chief.

The Court's decision provides a useful refresher on two important legal principles associated with just cause terminations:

  1. No duty of "procedural fairness" is owed by an employer to an employee, even when the employer is a public body.
  2. Reliance can be placed on after-acquired evidence of just cause that existed at the time of termination.

For the benefit of those who appreciate precision in drafting, the Court also helpfully distinguished between "insubordination" and "insolence" as separate and different forms of misconduct.

On Sarcasm

From the boz.com web site:

I first discovered sarcasm as a freshman in college, which I realize makes me a bit of a late bloomer as far as teenagers go. There were certain classmates who seemed to always come across as clever and funny no matter the topic. Over time I noticed there was a simple formula to their contributions and it was pretty easy to mimic. It could be as simple as responding with the opposite emotion as one might expect, feigning joy at bad news and heartbreak at good. On more complex topics it could be as simple as just repeating something someone else said but in a sarcastic tone.

Continuous Video Surveillance Of Employees: Psychological Harassment?

video camera
Case law recognizes that constant and continuous video surveillance of employees may constitute an unreasonable working condition, and thus violate . . . Human Rights and Freedoms . . . when not justified in a rational and proportionate manner according to the circumstances.

In the case of Lazzer v. Magasin Baseball Town inc.,, 2022 QCTAT 478, rendered by the administrative judge Pierre-Étienne Morand on February 3, 2022, rather than having to determine whether the presence of cameras constituted an unreasonable working condition within the meaning of the Charter, the Administrative Labour Tribunal ("Tribunal") had to rule on the merits of complaints of psychological harassment filed in this context.

SCC clarifies re fines instead of forfeiture where proceeds of crime.

maple syrup
"In 2016, V was convicted of fraud, trafficking and theft in respect of maple syrup. The stolen maple syrup, which had a market value of over $18,000,000, passed through the hands of several individuals before it was resold by V, who collected the income and paid his various accomplices. By V’s own admission, he earned $10,000,000 in income from the resale of the syrup obtained by theft or fraud and made a personal profit of nearly $1,000,000, minus certain transportation costs.

Under s. 462.37(3) of the Criminal Code, the trial judge imposed a fine on V in lieu of an order for forfeiture of property that was proceeds of crime (“fine in lieu”). Because the trial judge was of the opinion that he had no choice but to impose a fine equal to the value of the property that was proceeds of crime and that had been in V’s possession or under his control, he ordered V to pay a fine corresponding to the resale value of the maple syrup obtained by theft or fraud, that is, $10,000,000, minus the amount of a restitution order. However, the Court of Appeal reduced that amount to the profit made by V, $1,000,000, minus the amount of the restitution order. It held that courts have the discretion to impose a fine that reflects the profit made from a criminal activity, provided that this penalty meets the dual objective of deprivation of proceeds and deterrence. It was of the view that the fine imposed on V by the trial judge was clearly disproportionate to the objectives of the scheme governing this type of fine and that it created a situation of double recovery in light of the fines imposed on V’s accomplices."

The SCC (9:0)
allowed the appeal.

Tracking Businesses Withdrawing from Russia

A global coalition of businesses has united in support of the people of Ukraine and against Putin’s brutal invasion. As of March 16th, their tracking list recognizes 410 companies that have announced material actions to either withdraw entirely from Russia or otherwise materially curtail their operations within Russia. These companies want to be on the right side of history in the eyes of their customers, employees, and shareholders.Their actions matter and will make a difference. The Kremlin cannot win this economic war, and the oligarchs of Russia are now starting to openly speak up against Putin. Read More...

Clarification To Law Of Employee Surveillance

Elevator law, according to one colleague and despite our best attempts to intervene, has its ups and downs. It has a unique set of characteristics, including its own elevator union (the International Union of Elevator Constructors (IUEC)), industry- specific collective agreements and a workforce of largely independent technicians.

Technicians are often required to visit multiple worksites, work without direct supervision and manage their own time. In some cases, technicians are provided with a company phone which can track time, work completion and location. That tracking has been the source of significant tension and resulted in clarification to the law of employee surveillance.

In January 2022, the decision of Arbitrator Koml Kandola in KONE Inc. v. IUEC, Local 82 (Installation Back Reporting Tool (IBRT) 2.0 Grievance) [2022] B.C.C.A.A.A. No. 4 was published. This case revolved around a challenge to the employer's practice of collecting GPS information about employees at work, through their mobile phones. The decision will be relevant to any organization that uses location monitoring to manage the attendance of their workforce.

Putin’s Bloody Folly in Ukraine

Vladimir Putin delivered a bitter and delusional speech from the Kremlin this week, arguing that Ukraine is not a nation and Ukrainians are not a people. His order to execute a “special military operation” came shortly afterward. The professed aim is to “demilitarize and de-Nazify” this supposedly phantasmal neighbor of forty million people, whose government is so pro-Nazi that it is led by a Jewish President who was elected with seventy per cent of the vote. Read More...

Court Finds Employee's Reaction To Missed Promotion Was Cause For Dismissal

dismissedIn a recent decision, Thomas v. Saskatchewan Indian Gaming Authority Inc., the Court of Appeal of Saskatchewan re-affirmed the governing principles applicable to dismissal for cause. This case provides guidance to employers looking to address an employee's conduct after receiving news of a missed promotion or raise; specifically, whether or not dismissing said employee for cause is appropriate in the circumstances.