MB v. 557317 B.C. LTD. carrying on business under the name and style of T-LANE TRANSPORTATION AND LOGISTICS (Can. Adj., 12 April 2018, Ib S. Petersen)
(Note: The decision has been anonymized for names of individuals. A copy of the full decision may be obtained by email from Ib@ispetersen.com)
DECISION
- By letter dated 23 October 2017, I was appointed by the Minister of Labour to hear the unjust dismissal complaint filed by MB (the “Employee”) under Part III the Canada Labour Code, R.S.C. 1985, c. L-2 (the “Code”) against 557317 B.C. LTD. carrying on business under the name and style of T-LANE TRANSPORTATION AND LOGISTICS(the “T-Lane” or the “Employer”).
- By consent between the parties, I scheduled a hearing in Vancouver, BC, on 20 March 2018.While both parties requested the opportunity to call evidence by way of telephone conference, with which I agreed, they chose not do so.
- Neither party was represented by counsel. At the commencement of the hearing I affirmed both Mr. MH, who testified for the Employer, and Ms. MB. In my view, both testified in a forthright manner without embellishment.
- For the reasons that follow, I uphold her complaint.
Issue
- The main issue between the parties relate to the termination of Ms. MB’s employment on 14 February 2017. In its statement to Labour Canada under s. 241(1) dated 3 August 2017 the Employer explained that Ms. MB quit her employment. However, at the hearing, the Employer also took the alternative position that, in any event, it had just cause for the termination of Ms. MB under its harassment policy, which was in evidence. In the circumstances, I need not determine if the Employer’s failure to set out the alternative ground in its s. 241(1) statement bars it from bringing it up now, at the hearing.
Facts
- MB worked for the Employer as a Safety Officer from 20 February 2015 until 14 February 2017. At the time of her dismissal she was earning an annual salary of $50,000 and her compensation included a comprehensive employee benefits plan, including dental benefits.
- The Employer’s business is freight hauling across North America, operating trucks and other equipment. At the time of Ms. MB’s employment, the Employer had some 70 drivers, including owner-operators, and some 50 employees at its head office, located in Mission, BC. It operated some 100 pieces of equipment that required licensing. This was part of the responsibility of the Safety Office, where Ms. MB worked. The manager of the safety office was the Safety Manager, Mr. DF. He did not testify at the hearing and had apparently left T-Lane.
- MB’s duties were numerous and complex, including dealing with drivers, driver logs, compliance, workers’ compensation and driver complaints. It was an important and responsible position. She testified that she worked a lot of (unpaid) overtime, including at home on her computer. Ms. MB was a valued, responsible and dedicated employee, who performed her duties well. Ms. MB explained that the principal of the Employer, Mr. Tim TG , told her he had no issues with respect to her performance. In any event, the Employer did not raise any issues with respect to her job performance or any prior discipline. Ms. MB stated that she enjoyed her job. She did testify that she did have a concern about the owner, Mr. TG , whom she characterized as a “bully.” Other than the event that resulted in her employment coming to an end, she did not go into detail about the basis for this characterization.
- MH, who is the Employer’s controller, explained that Ms. MB’s employment came to an end after an alleged incident between her and another employee, Ms. Stephanie BE, in the afternoon of 14 February 2017.
- MB found out that she needed foot surgery some time in September 2016. It took quite some time for surgery to be scheduled. The surgery required that she be off work for 6 – 8 weeks. In December 2016, she found out that her surgery was scheduled for mid February. She went to her manager, Mr. DF, and informed him. He was focusing on the licensing renewal for the fleet. Ms. MB kept reminding him of her surgery and absence, and doing so repeatedly, in order that he take steps to train a replacement for her during her absence. Apparently, this did not happen until very close to the time of her scheduled absence for surgery, which would start on Wednesday 15 February 2017. In anticipation of her absence, Ms. MB completed a “job analysis” by the end of January, which was provided to the Employer. From her perspective, Mr. DF was procrastinating and did not address the issue in a timely manner.
- As Ms. MB’s surgery was approaching, she reiterated her concern to Mr. DF that no replacement had been found for her 6-8 week absence. MB suggested to Mr. DF an employee who had “shadowed” her for some time, Ms. SC, and had a degree of familiarity with the requirements of the position. However he told her that Ms. SC was about to be “fired.” The week before her leave, the Employer assigned Ms. BE as her replacement. She was working in sales, and reporting to another supervisor, the Advertising Manager. Ms. BE was supposed to “job-share” with, or “shadow,” Ms. MB to learn the job duties of the Safety Officer position. In the days leading up to the leave, Ms. BE did not spend much time with Ms. MB. She had the duties of her own job to attend to. As well, Ms. BE also worked remotely from home with respect to some of her duties. Ms. MB did ensure that Ms. BE had notes of important duties and responsibilities, and what she needed to do a daily basis. It is fair to say that from Ms. MB’s perspective, Ms. BE had not put much time and effort into learning the job duties of the Safety Officer. When Ms. MB questioned Mr. DF why Ms. BE had been assigned to the position, his answer was “because Mr. TG wants it.” At one point Mr. DF suggested to her that she could work remotely during her medical leave.
- On 14 February, the day before Ms. MB’s leave was to commence, Ms. BE did not come to office until the afternoon, around 1 PM. At some point, Ms. MB told Ms. BE that she could not teach her the job in just two days; it had taken her a 1 and ½ year to learn it. MB was winding up her work files and asked Ms. BE, who had a desk in Ms. MB’s office: “what she needed from her?” Ms., BE answered that she was not sure “because she was no going to be here from the end of the week.” Ms. MB did not know that. Apparently, for reasons that remain unexplained, she was also going to be away 6 – 8 weeks. The Employer’s rationale for assigning Ms. BE to the Safety Officer position in light of her impending absence remains unexplained and, in the circumstances, inexplicable. Ms. MB testified that this left her very confused. She testified that she felt Ms. BE was confused as well. Ms. BE knew nothing about the Safety Officer position, and it did not appear to Ms. MB that she had done much to learn the duties and responsibilities of the job.
- Soon after the conversation between Ms. MB and Ms. BE, around 3 PM, Mr. DF and Mr. TG came into Ms. MB’s office. BE was also there. Mr. TG started to question her. He asked her repeatedly, in front of the two other employees, “why she couldn’t do her job properly.” Ms. MB told him that she did not understand what he was talking about, and he kept telling her “why she couldn’t teach Ms. BE the job?” Ms. MB told him that she could not teach her the job in two days; it had taken her 1 and ½ year. She said she “couldn’t do it in 2 days.” Mr. TG kept telling her “why she couldn’t do her job properly.” Ms. MB said she had provided her “job analysis” to the Employer. Ms. MB was very emotional, very upset and crying at this point.
- After Mr. DF and Mr. TG left the office, Ms. MB was alone with Ms. BE. MB was still very emotional and very upset. She asked Ms. BE if she had said anything to Mr. TG . Ms. BE denied this. Ms. MB testified that she got up, pushed her chair back and it fell over. Apparently it has a “bad wheel.” Ms. BE said she was going to leave. Ms. MB then said: “no need, I’m going for a walk.” On her way out, Ms. MB kicked a file box on the floor next to her desk. She said the box had ben left there by another employee. She slammed the door on the way out. Ms. MB denied that she approached Ms. BE, as alleged, she went past her desk on the way to the door. The door was behind Ms. BE’s desk. I accept that Ms. MB was very emotional and very upset at the time of the incident. In my view, she was likely reacting to the, frankly, abusive, belittling and humiliating conduct she had been subjected to at the hands of the Employer’s principal, Mr. TG.
- In the incident report, dated 16 February, Ms. BE explained that Ms. MB became upset following a conversation in Ms. MB’s office, around 3:00 PM on 14 February, between Mr. TG, Mr. DF, Ms. BE and Ms. MB. The conversation was about Ms. MB teaching her the “job duties.” After Mr. TG and Mr. DF left the office, Ms. BE alleged that Ms. MB became angry and questioned her about having spoken with Mr. TG about Ms. MB being unable to teach her the job duties in just a few days. Ms. BE denied having spoken with Mr. TG. According to the report, Ms. MB “stated that she was “****ing pissed,”” and she slammed her fists into the desk. She then stood up, kicked the filing cabinet and “threw two pieces of furniture (chairs).” BE alleged that Ms. MB “began approaching her desk” and she began packing her “things.” Ms. Breck stated “I think I should be going.” Ms. MB then “yelled to” her, “pointing her finger, “No! You stay here.” Ms. MB slammed the door to the office on her way out. Ms. BE alleged that she then went to management to inform them of the situation. This happened, as noted, at approximately 3:15 PM.
- In the incident report, Ms. BE, the Employer submitted, complained of conduct of Ms. MB that could reasonably be considered intimidating and threatening. MB denied that she acted in an intimidating and threatening manner towards Ms. BE. Mr. MH did not personally witness the alleged incident and was not in a position to provide direct testimony. Neither Mr. TG nor Ms. BE testified. Ms. BE’s written account of the alleged incident is before me in the incident report. This evidence is in the nature of hearsay. Ms. MB’s testimony presented a different version of the events.
- After the incident, Ms. MB testified, she left the building and went down the street from the Employer’s premises. She needed to collect herself. Around 3:30 PM she returned, and met with Mr. DF in the parking lot. MB told Mr. DF: “I don’t know if I can take it anymore.” He responded: “you don’t have to, Mr. TG wants me to fire you.” At that point, Ms. MB believed she had been fired. Ms. MB went back to her office to get her things and found that her computer account had already been closed. She packed her personal belongings. She was still very emotional and upset. In the office, she came across Mr. TG. She candidly admitted that she “yelled” at him, demanding to know “why she had been fired.” He told her to come back and talk to him when she had calmed down. At the time, Mr. TG did not deny that she had been fired. Given the timing of Ms. BE reporting the alleged incident to management, at 3:15 PM, and Ms. MB meeting up with Mr. DF in the parking lot at about 3:30 PM, I am of the view that the decision to terminate her likely had already been taken and implemented.
- The Employer’s version of the conversation in the parking lot is different from Ms. MB’s.It is common ground that Ms. MB left the office for some 20 – 25 minutes and that there was a conversation between her and Mr. DF in the parking lot. MH testified that he was told by Mr. DF that she had quit. According to Mr. DF, Ms. MB told him: “I quit.” Mr. DF told Mr. MH that he had accepted the “quit” stating, “that’s fine; we were going to fire you anyway because of the incident” (with Ms. BE). Mr. MH candidly explained that he completed the ROE accordingly, indicating a “quit,” based on Mr. DF’s statement. He did not confirm the veracity of this information with Ms. MB at the time.
- After Ms. MB had left the office and arrived home, she found out that Mr. TG had sent out an announcement that she and, in fact, the other employee proposed for the Safety position, Ms. SC, were no longer with T-Lane. MB testified that she was surprised when she received her ROE indicating that she had quit her employment with T-Lane. In is not in dispute that she telephoned Mr. MH, who told her that he had completed the ROE based on what Mr. DF had told him. Ms. MB also sent an email to Mr. TG , but he did not respond. Ms. MB’s ROE stated that she had “quit.” This complicated her application for EI, delaying it such that she did not receive EI until May or June.
- The Employer’s harassment policy prohibits, among others, personal harassment, defined as repeated and inappropriate behaviour, which could reasonably be interpreted as intimidating or threatening. The policy also states that all “complaints will be investigated” and “as quickly as possible.” The policy was set out on a page titled “Conditions of Employment.” MH explained that it was part of an Employee Handbook. There was no other evidence before me with respect to the Employee Handbook, including, for example, whether employees were provided with copies and whether employees signed the policy to acknowledge their agreement. In any event, there is no evidence to suggest that any investigation took place. Ms. MB was not aware of the incident report written by Ms. BE until the hearing.
- MB testified that the Employer immediately cancelled her employee benefit plan, which included dental coverage. As the result, she had to pay for her husband’s dental procedure, which, she testified, would have been 50% covered by the plan. The cost of the procedure was $4,000. Ms. MB also testified that she cancelled the long-scheduled surgery as the result of the abrupt loss of employment because she was unsure of the impact of the termination and the loss of benefits. She subsequently had the surgery. While Ms. MB testified to her emotional state at the time of her termination, there was no evidence before me with respect to any ongoing mental health issues.
- Following her leaving the employ of T-Lane, Ms. MB sought to obtain other employment and had a few interviews. Her efforts at mitigation included searching various job related websites and Service Canada job boards. She has not found other employment and remains unemployed.
Analysis
- The Canada Labour Code provides:
240(1) Complaint to inspector for unjust dismissal
Subject to subsections (2) and 242 (3.1), any person
(a) who has completed twelve consecutive months of continuous employment by an employer, and
(b) who is not a member of a group of employees subject to a collective agreement,
may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.
- Generally a complaint must be brought within 90 days (s. 240(2)). Upon request, an employer is required to provide reasons for the termination to Labour Canada (s. 241(1)).The Code provides that an adjudicator does not have jurisdiction to consider a complaint where the employee had been “laid off because of lack of work or because of the discontinuance of a function” or “a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament” (s. 242(3.1)). The “unjust dismissal” provisions of the Code, Division XIV does not apply to “managers” (s. 167(3)).
- “Dismissal” is not defined in the A “dismissal” may be defined as “an act or decision of an employer that has the effect of terminating a contract of employment” (Eskasoni School Board/Eskasoni Band Council v. Maclsaac (F.C. A.), [1986] F.C.J. No. 263, p. 3). Section 240 of the Code refers to “unjust” dismissal. There is no definition in the Codeof what constitutes an “unjust dismissal.” In Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, the Supreme Court of Canada noted that an interpretation of employment standards legislation which encourages employers to comply with its minimum requirements, and so extends its protections to as many employees as possible, is to be preferred.
- MB, as the complainant appellant has the burden to prove on the balance of probabilities that she was dismissed. For the reasons set out below, I am satisfied on all of the evidence that she has met that burden.
- MB denied that she quit her employment with T-Lane. The test is well established in employment law. The test for a “quit” or resignation has two elements, a subjective and an objective. The subjective element requires clear and unequivocal conduct that the employee subjectively intended to quit. The objective element requires conduct from which a reasonable person could reasonably infer that the employee did, in fact, quit or resigned.
- It is common ground that Ms. MB had a conversation with Mr. DF in the parking lot of the Employer’s premises around 3:30 PM. However, there is conflict in the evidence with respect to what was actually said during the conversation. This is a material point. MH was told by Mr. DF that Ms. MB told him: “I quit.” Mr. DF told Mr. MH that he had accepted the “quit” stating, “that’s fine; we were going to fire you anyway because of the incident” (with Ms. BE). On their own, the words – “I quit” – could clearly and unequivocally indicate a subjective intention to resign. However, the circumstances, the Employer’s conduct and Ms. MB’s emotional state, cast doubt on whether she at that moment had the requisite subjective intention to resign and whether, assuming Ms. MB in fact told Mr. DF that she “quit,” the Employer was in a position to immediately accept her resignation. Mr. DF did not testify. Mr. MH was not present during the conversation in the parking lot. The Employer relies on Mr. DF’s statement to Mr. MH for the truth of the content of the statement(s). This is clearly hearsay evidence on a material point. Such evidence must be treated with great care. Cross-examination is effectively impossible, because Mr. MH ’s knowledge is limited to the statement and he has no personal knowledge of the underlying facts. It is difficult to assess the veracity of Mr. DF’s statement, and what he actually said or heard based on what he told Mr. MH. Under s. 242(2)(c) and s. 16(c) of the Code, an Adjudicator has a broad statutory authority to “to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not.” Under the CodeI have discretion to admit, for example, hearsay evidence. While I admitted the evidence, in the circumstances, I place little weight on it.
- MB expressly denied that she told Mr. DF that she “quit.”She denied using those words –“I quit.” Her evidence was that she told Mr. DF: “I don’t know if I can take it anymore,” in reference to the Employer’s conduct and Mr. TG ’s “bullying.” The words – “I don’t know if I can take it anymore” – do no convey an intention to quit, let alone a clear and unequivocal intention to quit. Those words more likely convey the fact that she was very emotional and very upset about the abusive conduct she had been subjected to by Mr. TG. Ms. MB testified under affirmation and subject to cross-examination. Where there is conflict in the evidence, I prefer the testimony of Ms. MB. In my view, Ms. MB did not clearly and unequivocally tell Mr. DF that she was quitting. This is, as well, confirmed by testimony as to what happened after the conversation in the parking lot.
- In my view, the Employer pre-empted Ms. MB from quitting as Mr. TG had decided to dismiss. Both parties agree that the subject of firing Ms. MB came up in the conversation. The Employer’s evidence was that, in accepting the “quit,” Mr. DF told Ms. MB “that’s fine; we were going to fire you anyway because of the incident.” MB testified that, in response to her questioning whether she could “take it anymore,” Mr. DF told her “you don’t have to, Mr. TG wants me to fire you.” At that point, Ms. MB believed she had been fired. At the time of the conversation in the parking lot, the Employer had already taken steps to put the termination in motion. Given the timing of Ms. BE reporting the alleged incident to management, at 3:15 PM, and Ms. MB meeting up with Mr. DF in the parking lot at about 3:30 PM, I am of the view that the decision to terminate her likely had already been taken well before any words of “quitting” had been spoken. When Ms. MB returned to the office after the conversation, her email account had been closed, confirming her belief that she had been fired. She packed her personal belongings. Moreover, she confronted Mr. German and she asked him why he had fired her. He did not deny that she had been fired. In addition, Ms. MB was surprised when she received her ROE from the Employer. She contacted Mr. MH, who explained that he had completed the ROE based on what he had been told. Ms. MB also emailed Mr. TG who did not respond. Much of this evidence was not contradicted.
- On the balance of probabilities, I find that Ms. MB did not quit her employment. In my view, Ms. MB was terminated from her employment and I, therefore, have jurisdiction to address her complaint of unjust dismissal.
- MB’s dismissal was brought about by the Employer. The next question is whether it was “unjust.” The Employer has the burden to prove that her dismissal was” just.” To meet that burden the employer must “establish with proof that is sufficiently clear, convincing and cogent, on the balance of probabilities” that the dismissal was just (Joseph v. Tl’azt’en First Nation, [2012] CLAD No. 184, para. 10, additional reasons at 2013 CarswellNat 1099 (Borowicz, Adj.), application for judicial review refused 2013 FC 767 (FCTD)).
- I take guidance from the principles confirmed and set out in Wilson v. Atomic Energy of Canada Ltd., 399 DLR (4th) 193, [2016] SCJ No 29, [2016] 1 SCR 770, 2016 SCC 29 (CanLII). In Wilson, the Supreme Court of Canada held that the purpose of statutory scheme in the Canada Labour Codewas to ensure that non-unionized federal employees would be entitled to protection from being dismissed without cause under Pt. III of Code. Those provisions offered a statutory alternative to common law of dismissals, and to align protection from unjust dismissal for non-unionized federal employees with those available to unionized employees. If the employer could dismiss without cause under Code by providing severance pay, no role would exist for plurality of remedies available to an adjudicator.
- In Wilson, the Court endorsed the comments by Prof. George W. Adams in Roberts v. Bank of Nova Scotia (1979), 1 LAC (3d) 259 with respect tothe terms “just cause” and “Unjust Dismissal.” In his view, Parliament had in mind the right that most organized employees have under collective agreements — the right to be dismissed only for “just cause.” The common law standard is simply whether the employer has “cause” for dismissal whereas “unjust” denotes a much more qualitative approach to dismissal cases. This includes the concept of progressive discipline, which generally requires employers seeking to justify the dismissal to demonstrate that they have made the employee aware of performance problems, worked with the employee to rectify them, and imposed “a graduated repertoire of sanctions before resorting to the ultimate sanction of dismissal.” The right to dismiss on reasonable notice without cause or reasons has been completely replaced under the Code by a regime requiring reasons for dismissal.
- In Iron and Kanaweyimik Child and Family Services Inc., [2002] C.L.A.D. No. 517, noted Adjudicator England stated:
…. In order to be considered “just”, an employer’s decision to dismiss must be (1) rationale, in the sense of furthering the legitimate business goals of the organisation; (2) proportional in the amount of harm the employee’s actions are causing to the production process; (3) made in good faith, non-arbitrarily and non-discriminatory; and (4) made in a procedurally fair manner.
The requirement for procedural fairness has also been adopted by other Adjudicators (Joseph v. Tl’azt’en First Nation).
- The Employer submitted that Ms. MB conduct violated its harassment policy prohibiting personal harassment. Her conduct could reasonably be perceived as threatening or intimidating, and in the Employer’s view, her termination was “just” for the purposes of the Code. The Employer’s harassment policy prohibits, among others, personal harassment, defined as “repeated and inappropriate behaviour,” which could “reasonably be interpreted as intimidating or threatening.” The standard suggested in the policy is an objective one, a reasonable interpretation. The policy also states that all “complaints will be investigated” and “as quickly as possible.”
- Assuming the policy is otherwise valid and enforceable, the first problem for the Employer in advancing this argument is that there is no evidence before me that Ms. MB engaged in repeated inappropriate conduct against Ms. BE.The alleged incident relied upon by the Employer to justify her dismissal was a single incident, which maybe lasted a few minutes, if that. There is no evidence before me with respect to any other incident between Ms. MB and Ms. BE. The Employer did not raise any issues with respect to her job performance or any prior discipline. The second problem, from the standpoint of the unjust dismissal case law, the policy also states that all “complaints will be investigated” and “as quickly as possible.” There is no evidence that any investigation took place. MB was not aware of the incident report written by Ms. BE until the hearing. Clearly the Employer did not allow her the opportunity to respond to the allegations prior to any decision being made about her employment. In addition, given the timing of Ms. BE’s complaint to management, approximately 3:15 PM, and the conversation between Ms. MB and Mr. DF at approximately 3:30 PM, it is highly improbable that any investigation, or any meaningful investigation, could have taken place. The Employer’s decision had been made and implemented before Ms. MB returned to the office around 3:30 PM. Insofar as the termination was based on the harassment policy, the Employer did not follow its own policy. From that standpoint, the decision was not made in a “procedurally fair manner” (Iron and Kanaweyimik Child and Family Services).
- The Employer faces a further difficulty. There were only two witnesses to the alleged incident relied upon by the Employer. MB, who testified under affirmation and subject to cross-examination, and Ms. BE, who did not. The Employer’s evidence of the alleged conduct is Mr. BE’s incident report. As discussed in more detail below, I am not confident that the incident report is an accurate, complete and reliable account of the alleged incident. Those concerns were not alleviated by Ms. BE stating that “[to] the best of my knowledge and belief, the information contained herein is true and correct.” As Ms. BE did not testify, she could not respond to or address concerns about the report. She was no available for cross-examination. I understand that Ms. BE was traveling and that was the reason for her absence. However, the hearing was scheduled by consent to allow the parties to ensure that witnesses are available. Mr. MH did not personally witness the alleged incident and he was not in a position to provide direct testimony. By way of background, he did acknowledge that there was a degree of “frustration” on the part of Ms. MB with respect to the alleged incident. As well, Mr. TG did not testify with respect to the events leading up to the conversation, the conversation or the decision to terminate Ms. MB’s employment. The Employer’s case rests largely on hearsay evidence.
- As mentioned above, under the CodeI have discretion to admit, for example, hearsay evidence. Documentary evidence is hearsay if it entered for the purpose of the truth of the statements contained therein. The Employer relied on Ms. BE’s incident report for the purpose of the truth of the content. If the document was entered for some other purpose, for example, that it was made, it may not be hearsay ( v. O’Brien, [1978] 1 S.C.R. 591). However, as noted by the Ontario Court of Appeal in Girvinv. Consumers’ GasCo., [1973] O.J. No. 2323, [1973] O.J. No. 814, 1 O.R. (2d) 421, 40 D.L.R. (3d) 509 (CA) and R. v. Barber, [1968] 2 O.R. 245, 68 D.L.R. (2d) 682 (CA), such evidence may lack cogency. Briefly put, it is well established in the labour arbitration case law that a decision cannot rest solely on hearsay, as is largely the case here.
- The definition of the word “threat”, Black’s Law Dictionary(5th ed.) includes the following: “A communicated intent to inflict physical or other harm on any person or on property. A declaration of an intention to injure another or his property by some unlawful act. … A menace; especially, any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and to take away from his acts that free and voluntary action which alone constitutes consent.” Black’s Law Dictionarygoes on to note that in “determining whether the words were uttered as a threat the context in which they were spoken must be considered.” The Oxford Canadian Dictionarydefines “threat” to include “1. A declaration of an intention to take some hostile action, esp. an expression of an intention to inflict pain, injury, damage etc. unless a particular demand or set of demands is met.” Black’s Law Dictionarydefines “intimidation” as “Unlawful coercion; extortion; duress; putting into fear. To take, or attempt to take, “by intimidation” means to wilfully to take, or attempt to take, by putting into fear of bodily harm. Such fear must arise from the wilful conduct of the accused, rather than from some mere temperamental timidity of the victim; however, the fear of the victim need not be so great as to result in terror, panic, or hysteria.” The Oxford Canadian Dictionary’sdefinition includes to “intimidate” as “to frighten or overawe, esp. to subdue or influence.”
- Threatening and intimidating behaviour is unacceptable in the workplace. No doubt such conduct is a serious matter. In the appropriate circumstances, such behaviour, if proven, could provide just cause for dismissal. In Scott & Co., BCLRB Decision No. 46/76, [1977] 1 Can. LRBR 1, (then) Chair Paul Weiler of the BC Labour Relations Board posed the test as follows:
13 Instead, arbitrators should pose three distinct questions in the typical discharge grievance. First, has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer’s decision to dismiss the employee an excessive response in all of the circumstances of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?
This test is consistent with the decision of the Supreme Court of Canada in Wilson. In Wm. Scott, the panel included such factors as the seriousness of the offence, whether the conduct was premeditated, or repetitive, whether it was a momentary and emotional aberration, whether there was provocation, and the service and discipline record of the employee, including progressive discipline.
- Aside from the Employer’s reliance on hearsay evidence, even if the alleged incident unfolded in the manner described by Ms. BE, putting the Employer’s case at its highest, this does not, in my view, make her termination “just” for the purposes of the Code. Even if I accepted that Ms. MB’s conduct could be considered threatening or intimidating to Ms. BE (and I do not), the Employer’s case is woefully short of contextual evidence, i.e. evidence of what precipitated the alleged incident. There is no evidence that Ms. MB uttered any words that could be directly interpreted as threatening or intimidating directed towards Ms. BE. This was a brief single incident, lasting perhaps a few minutes. There is no evidence of any prior adverse relations between Ms. MB and Ms. BE. There is nothing to suggest that it was premeditated. By all accounts Ms. MB was in a highly emotional state at the time, and the alleged conduct could well be considered a “momentary and emotional aberration.” It was an emotional flare-up. The incident report suggested that Ms. MB suspected that Ms. BE had complained to Mr. TG. MB was for all intents and purposes a good and valued employee without any prior discipline. In all of the circumstances, putting the Employer’s case at its highest, termination was an excessive response.
- In any event, the termination must be considered in light of the events and Employer’s conduct immediately prior to the incident, including Mr. TG ’s conduct, and Ms. MB’s emotional state at the time, which was result of that conduct. I turn to the evidence before me with respect to the merits of the alleged incident. It is common ground that Ms. MB lost her “cool;” she admits as much. At the time of the alleged incident, Ms. MB was still very emotional and very upset because of Mr. TG ’s conduct. His conduct was abusive, belittling, humiliating and disrespectful, questioning whether she knew her job and why she could not train Ms. BE, and in front of two other employees. TG chastised her for the Employer’s own failure to take steps to train someone for the Safety Officer position in a timely fashion, despite Ms. MB bringing the issue up with her manager numerous times and well in advance of her leave. Perhaps Mr. DF’s procrastinated. Mr. TG ’s reason for assigning Ms. BE to the position, when she was going to be away during Ms. MB’s absence, remains a mystery. Adding to the mix was Ms. BE’s failure make the effort to learn the job duties. It is not clear when Mr. TG found out about Ms. BE’s failure (for whatever reason) to learn the job duties, or from whom. Because neither of them testified, this remains unexplained. In the circumstances, it was logical and reasonable for Ms. MB to inquire if Ms. BE had told Mr. TG and, perhaps, blamed Ms. MB.
- According to her incident report, Ms. BE denied “these accusations.” The incident report suggests that Ms. MB became angry after Ms. BE’s denials and that, presumably, the anger was directed at her. However, Ms. MB testified that she became very emotional and very upset during the “conversation” with Mr. TG, Mr. DF and Ms. BE. The incident report does not provide much substantive information about the “conversation,” other than it was about Ms. MB teaching Ms. BE the “job duties.” The incident report does not provide much substantive information about indeed, the events that preceded the alleged incident. There is nothing about Ms. MB’s reaction to Mr. TG ’s conduct. The report conveniently focuses on Ms. MB’s alleged “bad” behaviour, leaving out any conduct on the part of Mr. TG and Ms. BE. In my view, the overall tenor of the report is to make Ms. MB appear more culpable and solely responsible for the incident. MB testified, and I accept, that she became very emotional and very upset during the “conversation” and was crying. In my view, that makes sense given Mr. TG ’s conduct. She continued to be in a very emotional state during the incident with Ms. BE. She did not become upset because of Ms. BE’s denials. While some of the emotions may have been directed at Ms. BE, on the balance of probabilities, predominantly, the cause of Ms. MB’s emotional state in the first place was Mr. TG ’s conduct.
- The report claims that Ms. MB “stated that she was “****ing pissed” and slammed her fists into the desk. She kicked filing a cabinet, “threw two pieces of furniture (chairs), and kicked the metal filing cabinets.” MB denied those allegations. Ms. MB testified that she needed to leave the office to collect herself. She testified that she got up, pushed her chair back and it fell over. She explained that it had a bad or broken wheel. On her way out, Ms. MB kicked a file box on the floor next to her desk that was in the way. It may have hit the filing cabinet next to her desk. I heard testimony with respect to the layout of the office where the incident occurred. Ms. BE’s and MB’s desks were facing each other. There was one or more filing cabinets in the office. It is not clear from the report how, where, or in what direction, Ms. MB was supposed to have thrown the two chairs. There is nothing to suggest that they were thrown in Ms. BE’s direction. As well, if as Ms. BE alleged, Ms. MB first kicked the filing cabinet beside her desk, then threw two chairs, and then kicked the filing cabinets, this time the “metal” cabinets, I am surprised she did not immediately leave the office, if she was fearing for her safety. In my view, it is more likely that Ms. BE’s incident report exaggerated Ms. MB’s conduct. Ms. MB testified that she needed to leave the office to collect herself. She did, in fact, leave the office. Given her emotional state, she probably got up from her chair with less than ordinary care and it fell over, whether due to a broken wheel or not, and she kicked the box that was in the way. It may have hit the filing cabinet.
- The report suggests that, after the throwing of chairs and kicking of filing cabinets, as Ms. MB “began approaching [her] desk,” Ms. BE “quickly packed [her] things,” and said: “I think I should be going.” The report paints a dramatic picture of Ms. MB as the aggressor. MB then “yelled to” her, “pointing her finger, “No! You stay here.” Then Ms. MB “slammed” the door, presumably on the way out. It was only then that Ms. BE “ran” to inform management. There statement that Ms. MB “began approaching [her] desk” makes little sense given the layout of the office. On the balance of probabilities, Ms. MB’s evidence makes more sense. Ms. MB denied that she approached Ms. BE. The two desks were facing each other. There were only a few feet from where Ms. MB had been sitting to where Ms. BE was sitting, and it would only take little for Ms. MB to reach her, if that had been her intent. Yet, Ms. BE had time to “quickly” packing her “things.” Ms. MB explained that Ms. BE said she was going to leave. Ms. MB responded: “no need, I’m going for a walk.” She was already in motion. Given Ms. MB’s emotional state at the time, it would not surprise me if she spoke to Ms. BE in a louder than normal voice, perhaps even yelled at her. Ms. MB went past her desk on the way to the door, which was behind Ms. BE’s desk. Ms. MB agreed that she slammed the door on her way out of the office. In all of the circumstances, I accept Ms. MB’s explanation, she was just leaving the office.
- The incident report, on its face, was completed and signed electronically on 16 February 2017.There was no explanation why it took until 16 February to complete the report or the circumstances surrounding its creation. I am not confident that the incident report is an accurate, complete and reliable account of the alleged incident. Overall, on its face, the report is not, in my view, sufficiently clear, convincing and cogent evidencethat Ms. MB engaged in in threatening and intimidating conduct, or conduct that could reasonably be seen as threatening and intimidating. As well, the Employer’s failure to call direct evidence from Mr. TG and Ms. BE, with respect to alleged incident, and what led up to it, leaves significant gaps in the Employer’s evidence (such as it is). The Employer’s case was large built upon hearsay evidence. The Employer has the burden to prove on the balance of probabilities that her dismissal was” just” through “sufficiently clear, convincing and cogent” evidence (Joseph v. Tl’azt’en First Nation). The Employer failed to prove on the balance of probabilities that Ms. MB engaged in threatening and intimidating conduct towards Ms. BE, or conduct that could reasonably be seen as threatening and intimidating.
- I prefer Ms. MB’s testimony, under affirmation and subject to cross-examination, to the Employer’s hearsay evidence. In my view, it is more likely that the events unfolded as testified to by Ms. MB. While she may have caused her chair to fall over, because of the manner in which she got up from it, and kicked a filing box, which in turn may have hit a filing cabinet. She slammed the door. However, she was in a highly charged emotional state. This was a brief and single incident. Her conduct was not premeditated. MB’s emotional state was the result of the Employer’s abusive, belittling, humiliating and disrespectfulconduct. There was a significant element of provocation on the part of the Employer. To the extent that her conduct was inappropriate, and in my view more than anything this was an emotional flare-up, it does not rise to the level of intimidation and threatening behaviour. On all of the evidence, I do not accept that Ms. engaged in threatening or intimidating conduct towards Ms. BE, or conduct that could reasonably be seen as such.
- In summary, the Employer has failed to meet its case on the balance of probabilities and, therefore, the dismissal was unjust. In the result she is entitled to compensation under the Code.
Remedies
- Where an employee has been unjustly dismissed, the Codeprovides an Adjudicator with broad remedial powers.
- Section 242(4) provides:
(4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to
(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;
(b) reinstate the person in his employ; and
(c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.
- In Wilson, Abella J wrote:
47 The effect of the 1978 amendments was to limit the applicability of the notice requirements in s. 230(1) and the minimum severance provisions in s. 235(1) to circumstances that fell outside the Unjust Dismissal provisions. The notice and severance pay requirements under ss. 230(1) and 235(1), for example, apply to managers, those who are laid off due to lack of work or discontinuance of a function, and, in the case of s. 230(1), employees who have worked for the employer for more than three consecutive months but less than 12 months. In other words, ss. 230(1) and 235(1) are not an alternative to the Unjust Dismissal provisions in ss. 240 to 246, they apply only to those who do not or cannot avail themselves of those provisions… [notes omitted]
- In Wilson, Abella J noted the difference between statutory and common law remedies for wrongful dismissal:
64 It is true that under s. 246, dismissed employees may choose to pursue their common law remedy of reasonable notice or pay in lieu in the civil courts instead of availing themselves of the dismissal provisions and remedies in the Code. But if they choose to pursue their rights under the Unjust Dismissal provisions of the Code, only those provisions apply. As Prof. Arthurs observed in his Report:
… the two types of proceedings differ most importantly in other respects.
The first relates to remedies. If successful in a civil action, an employee is entitled to damages equivalent to whatever compensation he or she would have received if the employment contract had been allowed to run its natural course — that is, for whatever period of notice would have been “reasonable.” If an employer has been unfair or high-handed in carrying out the discharge, the employee may be awarded additional damages. By contrast, if successful before an Adjudicator under Part III, an employee is entitled both to reinstatement and to compensation, not only for the duration of the notice period, but for all losses attributable to the discharge. These are potentially more extensive and expensive remedies than those a court might award.
[Emphasis added; p. 177, in Wilson.]
- Under the Code, the employee is entitled to be “made whole” – i.e. placed in the same position the employee would have been in but for the unjust dismissal. In the words of Prof. Arthurs, being “made whole” includes “all losses attributable to the discharge.” This may include reinstatement. This may include wage loss, actual and future, compensation for lost benefits and pension (Royal Bank of Canada and Dolly DuFour(Can.Adj., 17 November 2017, unreported (Coleman)). The employee is required to mitigate his or her damages.
- InHarbour Air and Maloney [2012] CLAD No. 105 (Coleman, Adj.), Adjudicator Coleman reviewed the case law and discussed the “make whole” remedy. He concluded:
170 A better approach, I think, for cases when reinstatement is rejected, is to consider the whole period the damages are meant to cover, regardless of when the award of unjust dismissal/no reinstatement is made; but to be clear in the difference between what is meant to be achieved with reasonable notice and making a person whole when reinstatement is found to be untenable. The factors may seem similar, but the concepts and goals are quite different. The “make whole” goal is defined in Employment Law in Canadaas “requir[ing] that the employee must be compensated for the difference between the financial position the employee would have occupied had he or she not been unlawfully dismissed; and (2) the financial position the employee occupies as a result of having been unlawfully dismissed”. Damages are paid for the loss of the job. By contrast, reasonable notice flows from a contractual obligation to cushion the blow of job loss by providing a reasonable period to look for other work where an employer’s obligation increases with the person’s length of service. Where there is a finding of unjust dismissal and failure to provide reasonable notice, damages are paid to put the person in the same position they would have been had reasonable notice been given — for the loss of reasonably notice. This payment would be expected to make the employee whole during the reasonable notice period that she was not given the opportunity to work. Under sec. 242 of the Canada Code, where reinstatement is not just a possibility, but the preferred option, damages are awarded to put the person in the same position they would have been had they not lost the job at all not simply been denied reasonable notice of that loss. Which necessarily translates as paid time and perhaps necessary expenses to find an equivalent replacement. That seems particularly appropriate where there is no contributory fault. Subject to mitigation obligations, if the person has not found an equivalent position by the time the decision is published that a wrongful dismissal has occurred, a reasoned but nonetheless subjective estimate should be made as to when it is likely that equivalent position will be achieved in the future, which may turn out to be a considerably greater time than what would be afforded by the courts’ consideration of reasonable notice which may have already past. There is thereby logic and connection between the wrong that was done and the damages awarded to make the person whole.
[Emphasis added].
- At the hearing, Ms. MB did not seek reinstatement. The parties did not make submissions about reinstatement. Accordingly, I make no order for reinstatement. As well, Ms. MB made no claim for future wage loss. The parties did not make submissions about such loss. I do not award any amount on account of future wage loss.
- Clearly, however, Ms. MB suffered a wage loss, subject to mitigation, attributable to the termination of her employment.The Employer generally questioned Ms. MB’s efforts to obtain alternate employment. She explained her efforts to obtain employment. After her termination from T-Lane, Ms. MB sought to obtain other employment and had a few interviews. Her efforts at mitigation included searching various job related websites and Service Canada job boards. As of the time of the hearing, she has not found other employment and remains unemployed. There is nothing to suggest that she failed to mitigate her damages (see generally, Michaels et al v. Red Deer College (1975), 57 D.L.R. (3d) 386 (S.C.C.)). The burden of proving a failure to mitigate rests on the Employer, and includes both an onus to prove a failure to make a reasonable search, and that the dismissed employee would likely have found suitable employment if reasonable efforts had been made. Her efforts to find alternate employment were reasonable. Despite her efforts, she did not find employment as of the time of the hearing.
- As noted by Arbitrator Sims, unionized employment does not guarantee lifetime job security (Hay River Health & Social Services Authority v. P.S.A.C, 2010 CarswellNat 5733, [2010] C.L.A.D. No. 407, [2010] A.G.A.A. No. 66, 104 C.L.A.S. 204, 201 L.A.C. (4th) 345). Neither does employment under the Canada Labour Code. The assessment of wage loss, including future wage loss, must factor in various contingencies, including such matters as “plant closings, bankruptcy, technological change, chance of layoff, chance of illness, quitting for other work and so on.” These factors in many cases will reduce considerably the horizon of damages down. However, the appropriate discount depends on the individual circumstances. Similarly, the “likelihood of future employment elsewhere needs to be factored in, and if the individual is skilled and employable this too will significantly reduce the level of damage.”
- These contingencies were not explored before me in any detail. MB’s salary with T-Lane was $50,000 per year or approximately $4,166.67 per month. She was a valued employee without any performance issues. She had no disciplinary history. She enjoyed the work, except for Mr. TG ’s “bullying,” which she did not explore in any detail. In my view, while she would likely have remained employed by the Employer up to the time of the hearing, I consider that she may well have left T-Lane for other employment. Ms. MB testified that she worked for the RCMP between 1980 and 2001, initially as a constable, later as a civilian employee. She later worked for other employers, including BCIT. She has a varied and extensive employment background that would facilitate her finding alternate employment. While she did not testify to her age, based on her employment history she was likely “not young.” She briefly mentioned that she had one job interview that did not result in an employment offer because of her “fit.” She suspected that it was because of her age. She had been out of work for approximately 13 months at the time of the hearing. In the circumstances, I award 13 months salary, or $54,166.67, less applicable statutory deductions.
- MB testified that the Employer immediately cancelled her employee benefit plan, which included dental coverage. As the result of her termination and cancellation of employee benefits, she had to pay for her husband’s dental procedure, which, she testified, would have been 50% covered by the plan. The cost of the procedure was $4,000. I award $2,000 on account of this loss.
Decision
I make the following orders:
- The Employer shall pay to Ms. MB $54,166.67, less applicable statutory deductions.
- The Employer shall pay to Ms. MB $2,000 on account of lost benefits.
Vancouver, 12 April 2018
________________________
Ib Petersen
Adjudicator