TeBaerts v. Penta Builders Group Inc., 2015 BCSC 2008 (CanLII)
In Steel v. Coast Capital Savings Credit Union, 2015 BCCA 127 (CanLII), the appellant (a 21 year employee) was dismissed for cause based on her breach of the respondent’s privacy policies, without permission, used the computer access she was provided as an IT Helpdesk Analyst to view a personal document of a manager stored on the internal computer network. The employer was a financial institution, necessitating a high degree of trust in employees. In Steel, the majority of the division of the Court held that in the circumstances, “a single act of misconduct can justify dismissal if the misconduct is of a sufficient character to cause the irreparable breakdown of the employment relationship.”
In TeBaerts, a 32-year old employee, who was a project consultant and account manager for a construction company, was dismissed for cause. She had been employed for 11 years. The company based the dismissal on her deleting files relating to two construction projects from the company’s computer system, failing to provide a full explanation for doing so, and communicating via email with her mother regarding employment prospects for her father, who was a senior and valued employee of the company. The employer employed a number of family members of the plaintiff and the owner of the company and there was “bad blood” between the plaintiff and the owner’s son-in-law. The Company regarded her conduct as dishonest and an attempt to sabotage the company.
At trial the company relied on the decision in Steel. In McKinley v. BC Tel, 2001 SCC 38 (CanLII), the Supreme Court of Canada prescribed a contextual approach for determining the existence of cause and the need for proportionality. The Court distinguished Steel.
[77] … the defendant urged the court to find the plaintiff deleted the files because of her dislike of Marty and her feelings of anger and jealousy. I have already found that the plaintiff’s frustration and upset over Marty’s uncensored conduct was one factor that led her to delete the files. However, there were other reasons for her decision; most importantly her belief Penta no longer needed the files because Marty had quit his job with Penta and the Richmond Street projects were to be completed by Marty through Oaktree. Absent her feelings about Marty, I expect the plaintiff may still have deleted the files, but perhaps less expeditiously, given her proactive approach to the organization of files on the server.
[78] To the extent the plaintiff’s goal of prevent Marty from benefiting or using the files was a factor in her decision to delete them, she made an error in judgment that I find was driven largely by a sense of unfairness rather than spite or malice. …
The allegations regarding the plaintiff encouraging her father to leave the company also failed to impress the court.
In the Court’s view the decision to summarily dismiss the plaintiff was significantly disproportionate to her conduct.
The court turned to damages:
- The plaintiff submits the notice period should reflect the availability of similar employment having regard to her training and qualifications. Ms. TeBaerts only ever performed project consulting, design and account management duties at Penta. She has no formal qualifications in accounting or design, although she completed some course work. The plaintiff has remained unemployed since she was fired. She provided a summary of her job search over the past many months that included documents related to the multiple positions she has sought. Penta adduced no evidence to suggest suitable employment is readily available. I am satisfied Ms. TeBaerts has and continues to search diligently for similar employment. I accept it will be more difficult for her to find a comparable position given her lack of formal training relative to her various duties as a project consultant and account manager with Penta. This is a particularly relevant factor here along with the length of uninterrupted service. She is however relatively young and this too is an important factor.
The Court awarded the plaintiff damages based on 12 months’ notice, around $90,000, but dismissed claims for punitive and aggravated damages.
In a subsequent decision, the Court awarded double cost (from the expiry of a settlement offer). The Court considered among others, that “the defendant chose to proceed to trial and pursue allegations of cause it ought to have known could not be sustained had they been assessed objectively and honestly. The testimony related to those allegations occupied most of the trial.”