IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The claimant, Ms. Murphy, was employed for over nine years by the defendant, Factors Laboratories Ltd, at its processing plant in Lake Country, BC. On August 24, 2018, the defendant terminated her employment. She alleges that her termination was without cause and she seeks damages as a result. The defendant says her termination was for cause. Alternatively, if not for cause, the defendant says her damages are limited by the terms of a written employment contract she signed.

[2]           The issues I must decide are as follows:

[3]           The claimant’s evidence consisted of her testimony and a binder of documents (“Exhibit 1”). The defendant’s evidence consisted of testimony from four of its employees, three of whom supervised the claimant over the course of her employment, and a binder of documents (“Exhibit 2”).

[4]           While I have considered all of the evidence, I shall only refer to portions of it to support my conclusions and ultimate disposition of the issues before the court.

[5]           Much of the facts are not in dispute. The claimant, at the time of her dismissal with the defendant, was 59-years-old. She had been continuously employed by the defendant since March of 2009. She was initially employed by the defendant from 2005 to 2007; however, in 2007 she left the defendant’s employ to pursue her own entrepreneurial enterprise. Unfortunately, that was not successful and in 2009 she once again secured employment with the defendant. She was hired as an on-call casual employee pursuant to a written employment contract dated March 16, 2009. On March 11, 2010, she accepted a full-time position with the defendant, once again pursuant to a written employment contract, as a dry preparation operator. Finally, on November 3, 2017, she accepted a full-time position with the defendant as a soft gel encapsulator for the defendant’s Encapsulation Department. This position was also subject to and accepted by way of a written employment contract. None of the positions the claimant was hired for required any specialized training beyond on-the-job training.

[6]           The defendant manufactures nutritional supplements and other products. It has two main manufacturing facilities: one is located in the lower mainland and the other is located in Lake Country. At these facilities, amongst other things, it produces and packages pills and other supplements for consumption. In addition, it has two offices outside of Canada: one in the United States and one in Australia.

[7]           In late December of 2017, the defendant implemented a new safety policy that required all employees at the Lake Country facility to wear “bump caps” in all production areas of the facility (the “Bump Cap Policy”). Bump caps, while similar to hardhats, are lighter and softer. They are designed for use around machinery to protect the wearer from injuries that could occur from bumping or hitting one’s head against the machinery. Like hardhats, they have an inner ring that sits on the wearer’s head that supports the actual cap’s outer shell.

[8]           The claimant was issued a bump cap and did wear it on the production floor, although not consistently. Unfortunately, it caused her migraines (which was a pre-existing medical condition she suffered from) to occur more frequently. It would also cause their onset shortly after she put on the bump cap. In late June of 2018 the claimant, after a discussion with her supervisor Kim Matheson regarding the wearing of the bump cap and her migraines, was provided a blank three page Medical Assessment Report (the “MAR”) to be completed by her doctor. The defendant sought the medical information to determine what steps it could undertake to accommodate the claimant’s medical condition in light of the Bump Cap Policy. The MAR provided to the claimant stated it was for “non-work-related injuries”.

[9]           The defendant has two different MAR forms. One is for non-work-related injuries and the other is for work-related injuries. Both forms seek substantially the same medical information from the employee’s doctor. The only difference between the two is the non-work-related MAR has a section requesting medical information involving mental illness.

[10]        On July 5, 2018, the claimant returned the MAR to the defendant with only the first page filled out by her doctor. Her doctor had recommended that she be exempted from having to wear a bump cap as it exacerbated her headaches.

[11]        On July 6, 2018, Sam Ruiz, the defendant’s Director of Manufacturing, told the claimant that the defendant required her doctor to provide the additional medical information requested on pages two and three of the MAR that had not been completed by him. He told her the defendant required it in order to be able to fully assess what accommodation could be arrived at regarding her medical condition and the Bump Cap Policy. She was provided with a new blank non-work-related injuries MAR to have her doctor complete and return to the defendant.

[12]        The claimant did not have her doctor complete the new MAR and this prompted a meeting on July 26, 2018, between her, Mr. Ruiz, and Jenna Norman, the defendant’s Human Resources Advisor. In the course of the meeting the claimant was again advised of why the new MAR was required and she was given until August 2, 2018, to return it to the defendant completed by her doctor.

[13]        On August 2, 2018, the claimant told Mr. Ruiz that she did not have the completed MAR and that she had not gone to her doctor.

[14]        On August 3, 2018, Mr. Ruiz and Ms. Norman met with the claimant. At the meeting she was provided a written warning letter regarding her actions surrounding her failure to wear the bump cap and provide the completed MAR.

[15]        On August 9, 2018, another meeting between the claimant, Mr. Ruiz and Ms. Norman occurred. By this date, the claimant had still not taken any steps to have the MAR completed by her doctor.

[16]        On August 10, 2018, Mr. Ruiz emailed a letter to the claimant setting out in detail why the defendant required the completed MAR, giving her until August 17, 2018, to do so, and advising her that her continued employment with the defendant was at risk if she failed to comply with the defendant’s request.

[17]        On August 17, 2018, the claimant and Mr. Ruiz had a telephone conversation within which the claimant confirmed she would not be providing the defendant the MAR completed by her doctor.

[18]        On August 24, 2018, the defendant terminated her employment.

[19]        The defendant says it terminated the claimant’s employment as a result of her failure to wear the bump cap, her stating she would not do so, and her refusing to provide requested medical information. The claimant says she did wear the bump cap, never said she would not wear it, nor refused to provide the requested medical information. It is on these issues where the evidence of the parties are at odds.

[20]        The claimant in her evidence acknowledged that she was aware of the Bump Cap Policy and that she did initially wear it. She said that it would cause her migraines to flare up and that she brought this to the attention of the defendant’s first aid officer on multiple occasions. She says the first aid officer told her that there could be no exceptions to the Bump Cap Policy even if she obtained a doctor’s note.

[21]        The claimant said that Sarah Patton, her immediate supervisor, was aware of her struggles with the bump cap and migraines and that she empathized with her and as a result, allowed her not to wear it.

[22]        She recalled meeting with Mr. Ruiz on June 29, 2018, and being told by him that the defendant wanted to work with her. He directed her to obtain medical information from her doctor regarding her migraines and the impact of wearing the bump cap. He provided her with the non-work-related injuries MAR to take to her doctor. She testified that she asked him for a work-related injuries MAR. She says she did so because she never experienced migraines prior to being employed by the defendant. She first experienced them in 2013 and she believed her migraines were caused by the odours at the defendant’s manufacturing plant. She said being given the correct MAR was important as she believed that by having to use a non-work-related injuries MAR, it could affect her ability to make any future claims with WorkSafeBC or with her disability benefits insurer. Mr. Ruiz, she said, told her that he had been instructed to give her the non-work-related injuries MAR.

[23]        The claimant said that she repeatedly told Mr. Ruiz and Ms. Norman that she would have her doctor provide the additional medical information they were seeking so long as she received a work-related injuries MAR for her doctor to complete. She said that she never refused to obtain the medical information and that at each of the meetings between her, Mr. Ruiz and Ms. Norman, in early August, she asked for a work-related injuries MAR to give to her doctor.

[24]        She admitted that she did tell Mr. Ruiz, in their telephone conversation of August 2, 2018, that she was not going to go to her doctor to have the non-work-related MAR completed.

[25]        She also said that at no time did she tell Mr. Ruiz, Ms. Norman, or any of her immediate supervisors that she was never going to wear the bump cap.

[26]        The defendant’s evidence directly contradicts the claimant’s. None of the defendant’s witnesses who were involved with the claimant in June to August of 2018 recall her ever asking them that she be given a work-related injuries MAR. Many of them testified that she informed them that notwithstanding anything her doctor may say, she was not going to wear a bump cap.

[27]        Mr. Ruiz, in his testimony, recalled the claimant at their meeting in late June of 2018 appeared positive about the defendant’s request for medical information from her doctor and its efforts to address her migraines and the impact of the wearing of the bump cap. He described the meeting as a positive and upbeat conversation. He said she accepted the non-work-related injuries MAR and agreed to have it filled out.

[28]        He confirmed that the reason she was provided a non-work-related injuries MAR was because she had previously suffered from migraines. He said that when she was provided the non-work-related injuries MAR, she did not ask him for a work-related injuries MAR.

[29]        On July 5, 2018, when he received the incomplete MAR from the claimant, he said he told her that they required a fully completed MAR to be able to assess what accommodations could be made for her. He says she did not say anything about receiving a work-related injuries MAR as opposed to a non-work-related injuries MAR. He followed up his conversation with an email to the claimant on July 6, 2018 (Exhibit 2, tab 5). The claimant did not email him back and request a work-related injuries MAR.

[30]        He says he next met with the claimant in mid-July when he bumped into her at one of the production facility’s water stations. On that occasion, he described her as being upset. She told him she was not going to wear the bump cap and said she was not wanting to go to the doctor to get the MAR filled out. She said that “if the company needed to do what it needed to do so be it”. At no time did she say to him that she wanted a work-related injuries MAR to take to her doctor.

[31]        Mr. Ruiz, on July 25, 2018, sent an email to Ms. Norman (Exhibit 2, tab 6) outlining all the interactions regarding the refusal by the claimant to wear the bump cap or obtain further medical information between him, Ms Patton, and the claimant, from late June to mid-July. The contents of that email are consistent with his oral evidence.

[32]        On July 26, 2018, he and Ms. Norman met with the claimant. He said they explained to the claimant the reason for the defendant’s request for additional medical information. She was provided with another non-work-related injuries MAR along with a job description (Exhibit 2, tab 19) outlining her duties. He recalled her initially being reluctant to return to her doctor to have the new MAR completed; however, he said she ultimately agreed to do so. He gave her one week to have the MAR completed by her doctor and returned to the defendant. At no point in the meeting did he recall her asking for a work-related injuries MAR.

[33]        Ms. Norman, who did not testify at trial, prepared contemporaneous handwritten notes regarding the meeting. They, and her notes from additional meetings, were included in Exhibit 2. Mr. Ruiz reviewed those notes and confirmed in his evidence that they accurately reflected the contents of the meeting. Nowhere within them is there any suggestion the claimant asked for a different MAR.

[34]        After he was told on August 2, 2018, by the claimant that she did not have the MAR completed and was not intending to have it completed, an additional meeting was arranged between him, Ms. Norman, and the claimant. That meeting occurred on August 3, 2018. Mr. Ruiz presented her with a written warning letter (Exhibit 2, tab 8) (the “Warning Letter”) regarding her failure to wear the bump cap and obtain the requested medical information. He read the letter to her. She was once again told to have the non-work-related injuries MAR she had previously been provided completed by her doctor and available for the defendant at the start of her next shift, on August 9, 2018. At no time during the meeting did the claimant request a work-related injuries MAR.

[35]        Mr. Ruiz confirmed in his evidence he had reviewed the notes of this meeting prepared by Ms. Norman and that they accurately reflected what occurred at the meeting. Nowhere in the notes does it refer to any request by the claimant for a work-related injuries MAR.

[36]        On August 9, 2018, Ms. Patton advised Mr. Ruiz that the claimant had not brought back the completed MAR and that she had told Ms. Patton that she did not intend to do so as she had already provided one.

[37]        This prompted him and Ms. Norman to have another meeting with the claimant. This occurred the same day. Within the meeting, Mr. Ruiz recalls the claimant, when asked why she had not had the MAR completed, saying that she was not willing to cooperate with obtaining it. He described her tone at the meeting as being “very short” and that she made it clear she did not want to cooperate with the defendant’s requests for additional medical information. She was sent home as a result. He said at no time during the meeting did she request a work-related injuries MAR.

[38]        Mr. Ruiz again confirmed in his testimony that he had reviewed Ms. Norman’s notes of the meeting and that they accurately reflected the events of the meeting. Nowhere within the notes is there any reference to the claimant requesting a work-related injuries MAR.

[39]        On August 10, 2018, Mr. Ruiz sent another letter to the claimant (Exhibit 2, tab 12). The letter was referenced as “Final Request for Additional Medical Information” (the “Final Request Letter”). Within it, he outlined the defendant’s efforts to date to obtain medical information from her, her refusal to do so, as well as explaining the reasons why the requested medical information was necessary. The letter provided her with a final deadline of August 17, 2018, to provide the defendant with the completed MAR. It also stated that her failure to do so may result in her employment with the defendant being terminated without further notice.

[40]        On August 17, 2018, he, along with Ms. Norman, telephoned the claimant to follow up with her regarding her efforts to obtain the additional medical information and to confirm she had received the Final Request Letter. She told them she had received the letter and that she did not intend to obtain any additional medical information. She did not request that she be provided with a work-related injuries MAR. Mr. Ruiz confirmed in his testimony that he had reviewed Ms. Norman’s notes of the telephone conversation and that they accurately reflected it. Nowhere within them does it refer to the claimant requesting a work-related injuries MAR.

[41]        On August 24, 2018, Mr. Ruiz met with the claimant and advised her that her employment with the defendant was terminated. He read to her, and gave her, a letter of termination (Exhibit 2, tab 14).

[42]        Ms. Patton and Ms. Matheson were at different times in the spring and summer of 2018 directly supervising the claimant at the defendant’s production facility. Both of them testified that the Bump Cap Policy had to be strictly adhered to and that they did not have the authority to give any employee an exemption from wearing it.

[43]        Ms. Patton recalled her providing to the claimant a new blank non-work-related injuries MAR in early July of 2018. She said that in all her dealings with the claimant she never said anything to her about being given the wrong MAR. She said there were a number of occasions when she had to remind the claimant to put on her bump cap. She could only recall one instance when the claimant refused to do so. She said it was when a tour was scheduled to come thru the production facility. She also recalled the claimant informing her that she did not intend to obtain any additional information from her doctor as she believed the initial partially completed MAR she had provided to the defendant was sufficient.

[44]        Ms. Matheson said there were two occasions she had to remind the claimant to wear her bump cap. The first occasion was in late June of 2018 and the second was approximately two weeks later. On the second occasion she said the claimant told her that “she did not have too and that Sam [Mr. Ruiz] was aware”. In cross-examination she confirmed she never recalled the claimant telling her she would not wear the bump cap.

[45]        After considering all the evidence, I find that I prefer the evidence of the defendant’s witnesses to that of the claimant on the issues of her refusal to wear the bump cap and provide the requested medical information. I do so for a number of reasons.

[46]        Firstly, none of the witnesses who had any direct dealings with the claimant recall her on any occasion requesting that she be provided with a work-related injuries MAR rather than a non-work-related MAR. All of their evidence was consistent with each other on this issue. It is also supported by documents that were created contemporaneously or shortly thereafter with meetings involving the claimant. None of the emails authored by Mr. Ruiz or Ms. Matheson reference any mention by the claimant of a concern regarding the MAR she had been provided. Neither the Warning Letter nor the Final Request Letter reference any mention by the claimant of a concern regarding the MAR she had been provided. None of the notes created by Ms. Norman detailing the contents of meetings and telephone calls with the claimant reference any mention by the claimant of a concern regarding the MAR she had been provided.

[47]        Secondly, the claimant, in cross-examination, when asked if she told Mr. Ruiz that she “would never wear the bump cap”, responded with “I probably did”. When it was suggested to her that when she returned to work on August 9, 2018, she said she “would not wear the bump cap” she responded with “I don’t recall”. By the claimant’s own admission, she confirms that she told Mr. Ruiz she refused to wear the bump cap (which is consistent with Mr. Ruiz’s testimony) and that her memory of what was said at meetings is flawed by her lack of recollection.

[48]        Thirdly, I cannot accept the claimant’s evidence that she would have obtained the requested medical information if she had been given a work-related MAR. Both MARs sought the same medical information. If the claimant’s objection to securing the additional medical information from her doctor was really because she had been provided a non-work-related MAR as opposed to a work-related MAR, she could have overcome this by simply crossing out the word “non” on the non-work-related MAR and given it to her doctor to complete. I find her refusal to secure the additional medical information was not because of the form of MAR she had been given but because she had no intention to return to her doctor.

[49]        Lastly, I do not agree with the claimant that the defendant was out to make an example of her because she would not wear the bump cap. The claimant was a long-term valued employee with the defendant. Mr. Ruiz said it was a very difficult decision to terminate her as he personally valued her hard work. He described her as a good operator and that it was a real shame that she did not want to work with them (on securing the medical information). Ms. Patton also said she was an extremely hard worker. She provided the claimant with a very positive reference following her termination. Given the claimant’s positive prior work history with the defendant, it defies logic that it would embark on a plan, as the claimant suggests in her argument, to make her a “sacrificial lamb”. The defendant gains nothing by losing an employee who was well respected for her hard work and skill. It would not embark on a calculated plan that would require several of its employees to collude in creating documents with misleading information and then attend court and give false testimony.

[50]        In summary, I find that the claimant, despite repeated warnings and requests, refused to wear the bump cap contrary to the Bump Cap Policy and never raised any objection to the form of MAR she was provided. She was given several opportunities to have the MAR completed by her doctor and returned to the defendant. I find that she deliberately chose not to do so. The medical information requested was necessary for the defendant to explore what options were available to it to accommodate the claimant’s medical condition in light of the Bump Cap Policy.

[51]        The claimant, when she accepted employment with the defendant, and on each occasion when she accepted a new position with the defendant, signed written employment contracts with it. Each of the contracts, amongst other things, stated under the heading “Occupational Health and Safety” the following:

[52]        The defendant’s job description for the position of Soft Gel Encapsulator states that some of the duties of the position require the employee to – Strictly adhere and observe all safety policies as outlined in the company policies and training sheets. [Emphasis added.]

[53]        The defendant’s manufacturing processes involved the use of industrial equipment. It had made note of an increase in head injuries at the Lake Country facility by its employees who operated or worked near the industrial equipment. It determined that to reduce the number of injuries and mitigate the risk of injuries going forward, it would implement the policy to wear protective headgear.

[54]        Its decision to do so is consistent with legislation enacted to protect workers in the course of their employment. See Section 115 of the Workers Compensation Act, RSBC 1996, c 492.

[55]        The decision by the defendant to implement the Bump Cap Policy was entirely reasonable and brought about to protect the health and safety of its employees. The claimant, pursuant to the employment contract between her and the defendant, was bound to adhere to it. The claimant refused to wear the bump cap. Her decision to do so was in direct contravention to the Bump Cap Policy. She refused to do so because she said the bump cap caused her migraine headaches. The defendant, in an attempt to address her concern, sought medical information from her doctor. She refused to provide it.

[56]        Was her refusal to follow the Bump Cap Policy, nor provide the medical information, sufficient to warrant her dismissal for cause? To answer that question a review of the applicable law is required.

[57]        In Kirk v. Nanaimo Literacy Association (c.o.b.a. Literacy Central Vancouver Island), 2018 BCSC 1217, the court set out the test to be applied when determining just cause for dismissal. It requires a consideration of a number of factors. They include the nature and seriousness of the employee’s misconduct, the surrounding circumstances in which the misconduct occurred, the nature of any employment contract between the parties and the position of the employee.

[58]        Kirk involved the executive director of a non-profit society who, over the direct objections of the president of the board of directors, terminated, without notice or cause, another employee of the society. Her action in doing so exposed the society to a potential significant financial liability. She subsequently sent a series of emails and letters to some of the directors of the board that were inflammatory and disparaging of the president of the board and another director. In light of her actions the board terminated her employment for cause. She sued the board for wrongful dismissal.

[59]        At paragraphs 101 to 106 of the decision the court stated the following:

[60]        If I find that the refusal by the claimant to wear the bump cap violated an essential condition of her employment with the defendant, that it was serious, and that as a result, her employment relationship with the defendant was fundamentally compromised, then her termination by the defendant would be in accordance with the law.

[61]        An employer may terminate an employee for the employee’s failure to provide medical information to substantiate his/her claimed disability restricting or limiting his/her ability to work.

[62]        In Gracia v. Sears Canada Inc, 1993 CanLII 226 (BC SC), [1996] BCJ No 1226, the court dismissed Mr. Gracia’s claim for wrongful dismissal when it accepted that Sears had acted reasonably in requesting updated medical information from Mr. Garcia’s physician so that it could ascertain whether he could return to work, and Mr. Garcia’s refusal to provide it was grounds for his dismissal.

[63]        At paragraphs 32 to 33 of the decision, Boyle J. stated:

[64]        The defendant implemented the Bump Cap Policy as a measure to ensure the health and safety of its employees. The claimant worked with and around machinery at the defendant’s production facility. She knew of the Bump Cap Policy, she was reminded repeatedly by her supervisors to adhere to it, she deliberately chose not to and made her decision known to the defendant.

[65]        I find her actions were wilful, deliberate and ongoing. They contravened a reasonable and important safety policy of the defendant and were contrary to her employment contract and her job description. Her refusal was a serious violation of company policy. In the circumstances, her actions constituted disobedience sufficient for her to have been terminated for cause. See Stein v British Columbia (Housing Management Commission) (1992), 1992 CanLII 4032 (BC CA), 65 B.C.L.R. (2d) 181 (C.A.), referenced in Kirk above.

[66]        The defendant knew of the claimant’s difficulties regarding her migraines and the impact of wearing the bump cap. They acted in good faith in initiating steps to secure medical information from her doctor with a view to accommodating her medical condition. When the medical information they were provided by the claimant was insufficient, they requested she provide them additional information. She refused to do so. She maintained her refusal to do so notwithstanding numerous verbal and written warnings.

[67]        The claimant could have avoided having her employment terminated, as was stated in Gracia, by either providing the defendant with the requested medical information or by commencing wearing the bump cap without objection. As she did neither, I find the defendant’s action in terminating her employment based on her disobedience and her failure to provide medical information was justified.

[68]        The defendant, therefore, has met its burden of establishing just cause to have terminated the claimant’s employment.

[69]        As I have found the claimant was terminated for cause, I need not address the issue of whether her claim for damages is limited by the employment contract between her and the defendant.

[70]        The law is clear that an employer who dismisses an employee for cause may do so without notice or payment in lieu of notice. See Ansari v. British Columbia Hydro and Power Authority (1986), 1986 CanLII 1023 (BC SC), 2 B.C.L.R. (2d) 33.

[71]        The claimant’s claim for damages for wrongful dismissal is dismissed.

[72]        The defendant has asked that I impose a penalty pursuant to Rule 20(5) as against the claimant as she pursued claims for damages against the defendant that had no reasonable basis for success. While there is merit to the defendant’s position, the central issue in dispute in the proceedings was: did the defendant have cause to terminate the claimant? The claims for damages advanced by the claimant did not require the defendant to present additional evidence or witnesses to refute them over and above the evidence and witnesses it required to respond to the issue of termination for cause. In the result, I decline to impose any penalty.

[73]        As the defendant was successful in defending the claim, it is entitled to recover its filing fees and reasonable expenses for doing so.