IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Claimant David Lura brings this claim against the Defendant Jazz Forest Products (2004) Ltd. for wrongful dismissal. He seeks damages for an amount equivalent to his salary for six months in lieu of notice.

[2]           The Defendant disputes the claim for a number of reasons. The Defendant alleges that the Claimant was dismissed for cause. Specifically the Defendant says that the Claimant was dismissed for misrepresenting his previous experience and qualifications, and for theft of emails, something which was discovered after his termination. The Defendant also alleges that the Claimant was also dismissed for cause because during the course of his employment with the Defendant in a sales position, he failed to make a single sale. If the Claimant was not dismissed for cause, the Defendant takes the position that the Claimant is only entitled to the minimum notice as set out in section 63 of the Employment Standards Act of BC because his period of employment was very brief, he was not enticed away from a lucrative position and his position was not a significant one.

[3]           On December 16, 2013, the Claimant brought an application for summary judgement pursuant to Rule 16(o) of the Small Claims Rules. That application was heard on January 24, 2014 and was dismissed on January 31, 2014, with written reasons reported at 2014 BCPC 14 (CanLII), 2014 BCPC 0014.

[4]           At the trial of this matter, three witnesses testified: the Claimant, the President of the Defendant and the Defendant’s General Manager. Following is a summary of the evidence heard at trial, the position of the parties, a summary of the applicable law, and the application of that law to the facts of this case in support of the Order now made.

[5]           In August of 2013, the Defendant posted an advertisement on the website of WorkBC, advertising for applicants for the position of its Lumber Sales Representative. On August 16, 2013, the Claimant sent an email to the Defendant applying for the position. In the email, the Claimant attached a resume and made the following representations about his qualifications for the position:

[6]           The resume attached to the email is undated. It states that the Claimant was the Sales Account Manager, North American Sales, for the Weyerhauser Company Limited (formerly MacMillan Bloedel Ltd.) from 1995 to 2002 and that the Claimant was employed with that company from 1974 to 2002. The resume lists the Claimant’s most recent employment as being with Wood Source Forest Products Inc. from February 2002 to “present”.

[7]           The Claimant testified that he had operated Wood Forest Products Inc. from 2002 to 2008 when his financial backer passed away. He tried to keep the business for another three years after that, but was unable to make a living at it. He states, in an affidavit filed with this court on December 10, 2013:

[8]           In the two years prior to being hired by the Defendant, the Claimant worked outside of the lumber industry. He worked as a heavy haul truck operator in Fort McMurray, Alberta, at a nursery in Abbotsford, and as a security guard in Chilliwack. When he applied for the position with the Defendant, he was working for Paladin Security as a security guard and had been working in that position since September of 2013.

[9]           The Defendant alleges that the Claimant misrepresented his work experience. Mr. Jasvir Binning, President of the Defendant, testified that he was led to believe that the Claimant was still operating his own forest products company. Mr. Binning believed that he could not call the Claimant’s employer for a reference because he understood that the Claimant was self-employed. Mr. Binning testified that he was told by the Claimant that the Claimant was still active in operating his own company. Mr. Binning asked the Claimant when he could start work and he said that the Claimant told him that he would need two weeks to wrap his business up. Mr. Binning agreed to this. He testified that the Claimant did not tell him that he was actually working as a security officer, and that if he had known that, he would not have hired the Claimant because the Claimant was no longer in contact with the industry, and would be less likely to bring new business to the Defendant.

[10]        The Claimant denied that he told Mr. Binning that he was still operating his own business or that he needed time to wind down his company. There does not appear to be any satisfactory way to resolve the question of whose evidence is correct on this point. On the one hand, in the Claimant’s email of August 16, 2013, he states that he had wound down his business “recently”, a relative and subjective term. On the other hand, in his resume, the Claimant shows his employment with Wood Source Forest Products Inc. as being from 2002 to “present”.

[11]        The Claimant and the Defendant entered into a written employment contract in which the Claimant was appointed as a sales representative for the Defendant’s products in a defined territory. The agreement commenced on October 7, 2013 and was silent on how it could be terminated. It contained the following sections:

[12]        There are a number of aspects of the negotiations between the parties on which there is conflicting evidence. For example, Mr. Binning testified that words were used which suggested that the Claimant’s employment was initially on a probationary basis. The Claimant denies that there was any such discussion. Whether or not this was discussed, the written agreement makes no mention of any probationary period, and the parties clearly agreed in paragraph 10 of their agreement that the written agreement superseded any oral discussions and that it contained the entirety of the Claimant’s terms of employment. The written agreement makes no mention of the Claimant being hired on a probationary basis, notwithstanding what Mr. Binning may have believed. Even in the absence of clause 10 of the agreement, the evidence does not satisfy me that the parties were ever of one mind on the question of whether or not the Claimant was a probationary employee at the time of his termination.

[13]        The Claimant testified that he believed that he was permitted to sell the Defendant’s product to prospective buyers in Australia, and that he had been dealing with such a buyer in Australia, but that he was subsequently told by Mr. Binning that the person that the Claimant was dealing with was an existing customer of the Defendant. The evidence satisfies me that this client had prior dealings with the Defendant and was not a new customer from Australia.

[14]        The Claimant was not making any sales for the Defendant and this was frustrating for the Defendant. Mr. Binning testified that he was patient at first, and gave the Claimant six weeks to improve his performance. But Mr. Binning never gave the Claimant any warnings, either verbally or in writing that his job was in jeopardy unless his sales performance improved. Mr. Binning testified that he believed that the Claimant “was trying” but that the Defendant could not carry a salesperson at a cost of $3500 a month when the salesperson was not selling anything.

[15]        By November 15, 2013, the Claimant had been working for the Defendant for 40 days, but he had not made a single sale. The Claimant believes that this was because the Defendant’s prices were not competitive. The Defendant disputes this. According to the evidence of the Defendant’s general manager Rajwan Singh, the company has three salespersons. The other members of the sales staff have been with the company for over five years. According to Mr. Singh, the Defendant has never had a salesman who went an entire month without making a sale, other than the Claimant.

[16]        On November 15, 2013 the Claimant met with Mr. Binning to discuss the Claimant’s poor sales performance. According to the evidence of Mr. Binning, the Claimant was embarrassed about the fact that he had not made any sales. Mr. Binning told the Claimant that the Defendant could not afford to pay $3500 a month for a salesperson who was not making any sales. He told the Claimant that he was terminating his employment, but offered the Claimant the option of working at home and selling the Defendant’s products through the Claimant’s own company. He proposed that the Claimant would get a higher commission on any sales he made under this new proposed arrangement, but would not receive any salary. According to Mr. Binning, the Claimant said that he needed a fixed salary. Mr. Binning said that he could not afford to pay a salary to a salesperson that was not making any sales. He told the Claimant that his employment was terminated, but that he still had the option of selling the Defendant’s product on a commission basis. He gave the Claimant until the following Monday to consider the offer. Mr. Binning testified that the Claimant called him on Monday and refused the offer. Within two hours of the call, Mr. Binning received a demand letter from Claimant’s lawyer.

[17]        The Claimant testified that he met with Mr. Binning on November 15, 2015. He testified that he had not made any sales up to that point in time and that Mr. Binning told him that the Defendant could not afford to continue to pay him a salary when he was not making any sales. Mr. Binning offered him the option of selling on a straight commission basis. The Claimant testified that he said that he was disappointed about the fact that he had not made any sales, but he felt that he was in a no-win situation by being asked to sell in a market that the Defendant had not sold into for a while. He was given the weekend to consider this option, and on Monday he declined the offer. He never returned to his office, and he had his lawyer send a demand letter to the Defendant later that day.

[18]        After the Claimant ceased working for the Defendant, Mr. Binning instructed Mr. Singh to look at the Claimant’s email for the purpose of checking if there were any sales requests or other matters which needed to be followed up on. When Mr. Singh did this, he discovered that the Claimant’s inbox, sent message folder and deleted message folder were completely empty. The Claimant has never returned the email to the Defendant and has never offered to do so. It is his position that he doesn’t have to unless he is asked to do so.

[19]        After acknowledging that he was aware of Clause 8. B of the Sales Representative Agreement that he signed with the Defendant, the Claimant admitted in cross-examination that in the course of forwarding it to his personal email address, he deleted his email when he left his employment. He was asked why he didn’t simply forward the email to himself without deleting the email, and gave this answer:

[20]        There are a number of problems with the Claimant’s evidence on this point. Firstly, anyone familiar with the use of email should know that the act of forwarding an email does not delete it and it certainly does not delete everything in the sent folder and in the deleted email folder. The Claimant’s testimony that he guesses that this is what caused the deletion of the email, but that he is not very computer literate is at odds with what he told the Defendant in his letter applying for the job, when he wrote that he had “good computer skills”.

[21]        The Claimant received his final pay cheque on November 19, 2013. It covered the period from November 1 to 15, 2013. After the Claimant ended his employment with the Defendant, he returned to his former employment as a security guard on December 5, 2013 at a rate of $13 per hour and worked in that position for twelve weeks. He earned $4,680 during that time (calculated at $13 per hour, for 12 weeks at 30 hours per week). He later found employment as a driver for a different company commencing on March 3, 2014, at a rate of $15 per hour. The Claimant testified that he searched for employment similar to the type that he had with the Defendant, but he was unsuccessful in locating similar employment.

[22]        The parties each acknowledge that the Claimant’s employment with the Defendant was for a very brief period, approximately six weeks, but they differ on two significant issues: (1) whether or not the Claimant’s employment was terminated for just cause or whether he was wrongfully dismissed from his employment; and (2) if the Claimant was wrongfully dismissed, what an appropriate amount of damages in lieu of notice is.

[23]        Counsel for the Claimant takes the position that his client was not dismissed for cause. In support of this, he relies on the evidence of Mr. Binning, who acknowledges that the Claimant “was trying”. The contract of employment is silent either as to required sales targets, or about the length of notice required to terminate the Claimant’s employment. In the absence of the latter, the law requires that a reasonable amount of notice be provided. In calculating what is reasonable, counsel argues that the court must consider the Claimant’s age (61), the type of employment (sales), the length of service (just under six weeks), and the availability of similar work.

[24]        Claimant’s counsel argues that the Claimant was not guilty of any serious misconduct or substantial incompetence. The Claimant was never given any warnings about his poor performance before he was fired, and Mr. Binning acknowledged that the Claimant was making efforts to sell the Defendant’s product. There was no dishonesty, misappropriation or theft on the part of the Claimant. Counsel argues that the lack of any effort on the part of the Defendant to recover the Claimant’s email suggests that it was of little importance and should not form the basis of grounds for dismissal.

[25]        Counsel for the Claimant argues that a reasonable period of notice in this case is six months, notwithstanding the brief period of employment. He argues that at age 61, the Claimant has a greater degree of difficulty in finding employment, and relies on a number of authorities (which I will summarize later in these reasons) which support a six month notice period. From this amount should be deducted the income which the Claimant actually earned during the mitigation period, which Claimant’s counsel calculates to be $11,280.

[26]        Counsel for the Defendant takes the position that the Claimant was fired for cause. Firstly, he argues that the Claimant was dishonest about his qualifications for the position because he misrepresented the currency of his experience in the lumber industry. He says that the Claimant was dishonest when he said on his resume that he was operating his own forest products company (at “present” according to his resume, and until “recently” according to his cover letter) when in fact he had been working in other fields for the past two years. This misrepresentation was a material one because if the Defendant had known that the Claimant was out of the industry for that length of time, it would not have hired the Claimant.

[27]        Counsel for the Defendant also argues that the deletion of the Claimant’s email without permission was a clear breach of paragraph 8 B of the employment contract. He says that the Claimant’s contention that this was okay because the Defendant never asked for the email back is ludicrous and is further evidence of a lack of integrity on the part of the Claimant. Counsel argues that there is no reason to delete this email other than to conceal evidence of poor job performance.

[28]        In the course of his submissions, counsel for the Defendant abandoned the argument that the Claimant was a probationary employee. This was not stated to be the case in the contract of employment, and clause 10 of the agreement precludes this being a collateral oral term of the contract. If it was the Defendant’s intention that the Claimant’s employment was the subject of a term of probation, this should have been spelled out in the written contract. It was not and so counsel fairly concedes that this argument must fail.

[29]        Finally, counsel for the Defendant argues that it the Claimant was not dismissed for cause, his damages should not exceed what is provided for under section 63 of the Employment Standards Act of BC.

[30]        Counsel points out that the period of employment was very brief, the Claimant did not leave a lucrative position, he was not employed in any management position, and he returned to his prior employment within a short time after termination of his employment with the Claimant.

[31]        The relationship of employer and employee is s a contractual one. At common law, in the absence of a specific provision otherwise, an employer may not dismiss an employee without giving the employee reasonable advance notice of the termination of employment or compensation in lieu of notice. An exception to this general rule is where the dismissal is for just cause.

[32]        Every employment contract is subject to an implied term that the employee will faithfully, honestly, and diligently serve the employer. (This can be removed by an express provision in the agreement, but it would be strange for an employment contract to contain such provision.) An employee who commits a fundamental breach of this term has repudiated the contract, and the employer is entitled to dismiss such an employee without notice or compensation.

[33]        The onus is on the employee to establish a prima facie case of dismissal, at which point the burden shifts to the employer to prove cause. In this case there is no dispute that the Claimant was dismissed from his employment.

[34]        There is no fixed rule of law defining the degree of misconduct that will justify dismissal. It is a question of fact to be assessed in each case. The general rule with respect to just cause was stated by the court in R. v. Arthurs, Ex parte Port Arthur Shipbuilding Co. (1967), 1967 CanLII 30 (ON CA), 62 D.L.R. (2d) 342 (Ont. C.A.), (reversed on another point (1968), 1968 CanLII 29 (SCC), 70 D.L.R. (2d) 693 (S.C.C.)) at p. 348 as follows:

[35]        In Macdonald v. Richardson Greenshields of Canada Ltd.  (1985), 1985 CanLII 319 (BC SC), 69 B.C.L.R. 58 (B.C.S.C.), after quoting the above passage, the court went on to say that “the degree of misconduct must be that which shows that the employee has disregarded the essential conditions of the contract of service.”

[36]        Not every shortcoming in the employee’s performance will amount to a fundamental breach of the contract of employment. Minor failings on the part of the employee, gradual deterioration of performance, or even an accumulation of a number of minor failings require the employer to warn the employee and to give the employee a reasonable opportunity to correct those deficiencies before termination of the employment without notice will be justified. The employer must treat the employee fairly and with good faith and must disclose to the employee the errors she or he is making.

[37]        The dishonesty of an employee has sometimes been found to be sufficient grounds for dismissal, provided that the dishonesty is significant and is established on a balance of probabilities. In McKinley v. BC Tel 2001 SCC 38 (CanLII), [2001] 2 SCR 161, the Supreme Court of Canada analyzed the law on this issue. The headnote of the case reads in part as follows:

[38]        In this case, the evidence suggests that the Claimant was not completely forthright on a number of issues. Certainly his resume and his email sending the resume to the Defendant left the impression that the Claimant was not very far removed from the lumber industry. The statement in his letter that he had wound his business down “recently”, the indication in his resume that he was working at his own company in the lumber industry to the “present”, and the absence of any mention of his actual employment as a truck driver, in a nursery and as a security guard support the contention that the Claimant was attempting to convey the false impression to the Defendant that he was working in the lumber industry very recently. These and other discrepancies in the Claimant’s evidence lead me to accept the evidence of Mr. Binning that the Claimant represented to him and that he believed that he was hiring someone with fresh connections to the lumber industry.

[39]        I also find that the Claimant is being disingenuous when he testified that his inbox, sent messages and deleted messages were somehow deleted by his act of forwarding email to himself. Firstly, this is contrary to the experience of anyone who has ever used email. Secondly, the Claimant said, in the email accompanying the resume, that he had “very good computer skills”. This statement is inconsistent with his testimony at trial that he was “not that computer literate”. One of these two statements is false. His logic that it was acceptable for him to delete all of his email because he was never asked to return it is difficult to understand. He had signed a contract in which he agreed not to keep the email from the Defendant. Once the email was kept from the Defendant, it is understandable that the Defendant would have good reason to question whether or not the Claimant would actually return all of the email, or would only return that portion that was beneficial to his case.

[40]        It must next be considered however whether or not this degree of dishonesty meets the standard required for dismissal of an employee for cause. In McKinley v. BC Tel, supra, the court said at paragraph 53 that “an effective balance must be struck between the severity of an employee’s misconduct and the sanction imposed.” The court went on to state at paragraph 57 that there must be:

[41]        Applying these considerations to this case, I would certainly conclude that the taking of the email in clear breach of paragraph 8 of the contract, the Claimant’s disingenuousness about the circumstances in which the email was deleted, and the taking of the email at a time when the Claimant knew that litigation with the Defendant was a reasonable possibility all combine to cast a shadow on the Claimant’s integrity.

[42]        Yet as much as these acts give rise to concerns about the Claimant’s honesty, it is not clear that they are sufficient to warrant the remedy of dismissal. The misrepresentation about the Claimant’s experience in the lumber industry would be more troubling if he had never worked in the industry or if he had not done so for over a quarter of a century. The loss of the email has not been shown to have somehow adversely affected the Defendant’s business. The fact is that the Claimant was not making any sales and it is unlikely that the presence of the email would shed any worse light on that fact. The reasons for the Claimant’s poor performance as a salesman are unclear. It has not been shown that he was not showing up for work, was not trying to make sales or was guilty of some other misconduct. The missing emails may show some other misconduct, but this is speculative. His breach of clause 8 B would not justify termination of the contract by itself, and would at best entitle the Claimant to damages if such damages could be quantified.

[43]        While the Claimant’s conduct in this regard does not present him in a favourable light, I am unable to conclude that his dishonesty goes to the core of the employment relationship to a degree that warrants his dismissal for cause. While the facts of this case may be described as “close to the line”, I am not satisfied that they Defendant has shown just cause for dismissal of the Claimant.

[44]        Section 63 of the Employment Standards Act of British Columbia sets out the minimum standard for the amount an employer is required to pay an employee in the event of dismissal. Section 63(1) provides that the employer is liable to pay the employee an amount equal to one week’s wages provided that the employee has worked for that employer for at least three consecutive months. This is a minimum standard, and does not disentitle an employee to a larger amount of compensation or notice if the common law requires such payment.

[45]        Counsel for the Claimant and Defendant have provided a number of authorities which suggest a range of damages for cases involving dismissed employees whose period of employment was brief. The decisions range anywhere from two weeks to six months in the amount of notice required. Each counsel contends that the other’s cases are “outliers” and therefore some examination of the cases cited is called for. Following is a summary of the cases provided:

[46]        These summaries are simplifications of more complicated fact patterns, but they serve to demonstrate that there is a wide range in what courts consider to be an appropriate notice period for an employee who has been wrongfully dismissed after a brief period of employment. Certain principles emerge from these cases however. There are certain things that a court must take into consideration. In Bardal v. Globe & Mail Ltd. 1960 CanLII 294 (ON SC), [1960] O.J. 149 (Ont. H.C.J.), Chief Justice McRuer wrote:

[47]        To summarize, the factors to be taken into consideration are:

[48]        Character of the Employment: In Ansari v. BC Hydro 1986 CanLII 1023 (BC SC), [1986] 4 WWR 123 (BCSC) the court stated, at paragraph 17, that while “levels of responsibility are important,” a courts should not overly concern itself with the minutia of the employment being terminated and that “the law does not seem to treat special competence or the lack of it as a particularly important factor in the determination of the notice period, although courts have occasionally commented upon the performance of the dismissed employee.”

[49]        In this case, the Claimant was hired as a sales person. He was not required to supervise other employees. He did not set budgets or have any other administrative tasks. His job was simply to sell the Defendant’s product and regrettably he was unable to do that. In Ansari the court said, at paragraph 20, that “the plaintiff’s efforts and contribution to the financial success of the undertaking was not a factor to be taken into account in fixing reasonable notice.” It also stated, at paragraph 21, that “the employer is not entitled to penalize an employee for less than satisfactory service by reducing the notice period.”

[50]        Length of Service: In Ansari the court stated, at paragraph 26, that “the law requires a longer notice period for a long-term employee even though discharged employees of the same age, skill and responsibility suffering under the same economic factors must be assumed to require an equal period to obtain equivalent employment. The reasons for this anomaly may be that a long-term employee has a moral claim which has matured into a legal entitlement to a longer notice period.”

[51]        The BC Court of Appeal, in Saalfeld v. Absolute Software Corporation 2009 BCCA 18, offered the following guidance at paragraph 15 (though not specific in some aspects to this Claimant) in fixing an appropriate period of notice for a short service employees:

[52]        I take it from that statement of the law that:

[53]        Age of the Employee: In Ansari, the court stated at paragraph 27 that older employees, particularly those over the age of 50, should be given a longer period of notice, “because age bears so importantly upon the prospects for other similar employment.” As a general rule and in the absence of contrary evidence, it can be presumed that employment opportunities for older employees are more limited than they are for younger employees.

[54]        Availability of Similar Employment: Little evidence was presented about what the job market was like in the field of employment that the Claimant was dismissed from. The fact is that he has not found similar employment. According to the decision of Ansari in paragraphs 29 and 30, this is not as significant a factor as the other factors. The length of notice is not the same thing as the period required to find new employment. As the court said, holding employers to such a standard would be equivalent to making the employer solely responsible for the lack of available positions in a depressed economy and this would be manifestly unfair. While the lack of available employment opportunities is a factor to be taken into account, is should not be given undue emphasis.

[55]        On an application of these considerations, I find that an appropriate period of notice for the Claimant is two months.

[56]        In arriving at this conclusion, I take into account firstly that the Claimant was not induced to leave a similar position, a more lucrative one or a more secure one. The position which he left was one that he had been at for a brief time and one that he was able to return to within a few weeks of his dismissal. He remained at that position for twelve weeks, so job security within that position was not an important consideration for him. In the final analysis there was little disruption in the Claimant’s life because of the actions of the Defendant. The Defendant did not derail any career path that the Claimant was on, and the Claimant was already experiencing difficulty in re-entering the lumber sales industry at the time he was hired by the Defendant.

[57]        The position held by the Claimant was strictly sales. He was not in any sort of management position. He did not supervise any other employees, did not have any budgeting responsibilities and or any other management duties.

[58]        I find no bad faith on the part of the Defendant. The Defendant generously guaranteed the Claimant a fixed income, based on the reasonable expectation that a person with the Claimant’s experience would earn that back and more. In what is apparently unprecedented for this position, the Claimant failed to make any sales. I am unable to determine if this was due to a lack of effort on the part of the Claimant or if it was because of his incompetence or because of factors beyond the Claimant’s control. By deleting the email in his inbox, sent messages and deleted messages in breach of his contract of employment, the Claimant frustrated the possibility of making a better assessment of why he was not making any sales. This is not a reason for reducing the notice period. However this is also not a case where the Defendant can be said to have acted in bad faith, a factor which, if present, may entitle the Claimant to a longer period of notice.

[59]        These factors alone may, in the case of a younger employee, suggest that an appropriate period of notice is one month. I am increasing the period of notice however based on the Claimant’s age, and because I believe that a two month period of notice is more within the range suggested by the BC Court of Appeal in Saalfeld at paragraph 15.

[60]        For the foregoing reasons the Claimant shall have judgement against the Defendant for the sum of $4,660, which I calculate as follows:

[61]        The Claimant will also have his costs in the sum of $236 as pled in his Notice of Claim.