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Dalton v. Fraser Valley Fire Protection Ltd., 2021 BCPC 146 (CanLII)

Date:
2021-06-02
File number:
23876
Citation:
Dalton v. Fraser Valley Fire Protection Ltd., 2021 BCPC 146 (CanLII), <https://canlii.ca/t/jg7fd>, retrieved on 2024-03-28

Citation:

Dalton v. Fraser Valley Fire Protection Ltd.

 

2021 BCPC 146

Date:

20210602

File No:

23876

Registry:

Abbotsford

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

BETWEEN:

WILLIAM JOSEPH DALTON

CLAIMANT

 

 

AND:

FRASER VALLEY FIRE PROTECTION LTD. and REUBEN LOLAND

DEFENDANTS

 

 

 

 

 

 

 

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE K. D. SKILNICK



 

Appearing in person:

W.J. Dalton

Appearing for the Defendants:

R. Loland

Place of Hearing:

Abbotsford, B.C.

Date of Hearing:

May 31, 2021

Date of Judgment:

June 2, 2021


Introduction

[1]         The Claimant, William Joseph Dalton, brings this action against the Defendant, Fraser Valley Fire Protection Ltd. (“FVFP”), for wrongful dismissal. He has also sued the Defendant, Reuben Loland, but he acknowledges that his claim is really against FVFP. The Claim brought against Reuben Loland was dismissed at the start of the trial.

[2]         For the most part, the facts on which this claim is based are not in dispute, although the parties do disagree on some things. It is not in issue that the Claimant left a position with another fire protection company that he had been at for 13 months to take a similar position with the Defendant. It is also agreed that the Claimant was dismissed from his employment three days after he started work with FVFP.

[3]         The Claimant views his firing as a wrongful dismissal and says that he was fired without just cause. He suspects that his firing was because of age discrimination, but nothing in the evidence presented supports this as being the case.

[4]         FVFP says that the Claimant was a probationary employee and that it was entitled to dismiss the Claimant without cause as a matter of law. The Claimant denies that it was ever a term of his employment that he was a probationary employee, and this is something that is in dispute between the parties. The Claimant also says that even if he had been a probationary employee (which he is adamant that he was not), FVFP was not entitled to dismiss him from his employment on a whim, and was under a duty to give him an opportunity to correct any problematic behaviour before choosing to fire him.

1. Was the Claimant Enticed to Be Hired by FVFP?

[5]         The Claimant says that he was enticed away from his previous employer to take employment with FVFP. FVFP disagrees. This is a relevant consideration because if the Claimant was wrongfully dismissed from his employment, this affects the measure damages that the Claimant is entitled to.

[6]         At law, an employee is enticed to leave previous employment and take new employment with an employer if the employee leaves secure employment at the request of the new employer. Whether or not an employee was enticed to take new employment depends on a number of factors, which include the position, security and remuneration in the former job, who sought out who in the new employment situation, and what representations were made by the new employer. Inducement is especially important in cases where an employee leaves long-term secure employment to take a position with a new employer who later terminates that employment without cause.

[7]         In this case, based on the Claimant’s own evidence, he has not proven that he was induced to leave his old job to take employment with FVFP. Firstly, the Claimant had only been with his previous employer for 13 months. He had received his certification as a Registered Fire Protection Technician on September 15, 2017, according to his own exhibit (In the résumé he provided to FVFP, the Claimant says that he received his certification in July of 2017.). Whatever the reason for this discrepancy, for the first five to seven months of his previous employment, he had not yet attained his certification and was with that company as a fully-certified technician for seven months at most. This is not a case of someone leaving long term secure employment.

[8]         The Claimant testified that his main reason for leaving his previous employer was that it was difficult for him to carry heavy items and he was looking for a position with less heavy lifting. It was the Claimant who approached FVFP, initially seeking a sales position. FVFP told the Claimant that they did not have a sales position available, but that they were looking for more technicians to meet their client demand. This falls well short of an enticement situation and was more in the nature of simply alerting the Claimant to an employment opportunity rather than an enticement. On the evidence, both from FVFP’s Service Manager, no promises were made to the Claimant of long-term employment or of any inducement to leave his current employer.

[9]         In the notes from the Claimant’s interview for the job, the Human Resources Manager of FVFP asked the Claimant what his reasons were for leaving his current position. One of the responses he gave was that he disliked the lack of teamwork at the old position and that he was looking for a workplace with a happy atmosphere and more teamwork.

[10]      In the final analysis, the Claimant has not proven that he was enticed away from his old job. Rather the evidence supports the conclusion that he left the position of his own volition because he disliked the heavy lifting and also disliked the lack of teamwork. The evidence does not suggest that the Claimant was head-hunted by FVFP, but rather that he had sought them out and was invited to apply for a different position from the one he had applied for. This is not a case of enticement.

2. Was the Claimant Wrongfully Dismissed?

[11]      When asked why the Claimant was fired by FVFP after only three days on the job, FVFP’s service manager, Mark Cunningham, testified that the Claimant “was not a good fit.” When asked to elaborate on this answer, Mr. Cunningham said that the Claimant “didn’t have the skill set we would normally want” and because the Claimant had personality conflicts with other employees in the company.

[12]      The Claimant spent his first day working with an employee named Travis. Travis did not testify at trial. According to the Claimant, he and Travis got along well. According to FVFP’s Vice-President, Reuben Loland, Travis had reported problems with the Claimant. Specifically these were that the Claimant would not take advice, that he was loud and argumentative, and that he “goes off on tangents.” It does not appear that these concerns raised by Travis were ever discussed with the Claimant or that he was ever given an opportunity to address them or correct them.

[13]      The next day, the Claimant worked with another technician, Michael Huard. Mr. Huard also did not testify at trial, but it is clear from everyone’s evidence that there was a personality conflict between Mr. Huard and the Claimant. The Claimant was critical of a particular job that he worked with Mr. Huard on, one on which he felt that Mr. Huard’s professional standards were lacking. He said that he also felt uneasy when Mr. Huard had taken him into the company boardroom where there were pictures of shirtless men posted under a sign reading “male bonding.” He related other incidents in which he felt that he had been treated unprofessionally by Mr. Huard and he testified about how Mr. Huard had acted unprofessionally in clients’ offices.

[14]      According to Mr, Loland, it was Mr. Huard who complained about the Claimant. The notes taken of the interview with Mr. Huard refer to a series of general complaints, though none of these appear to rise to a level justifying the Claimant’s immediate dismissal. He complained that the Claimant worked too slowly, that he had the company van in reverse when he thought it was in park, that the Claimant had asked him to hold open a door, and that he did not like where the Claimant had parked the van.

[15]      The Claimant testified that he was upset with Mr. Huard’s professional standards, and that he had wanted to discuss them with someone higher up at the company. Interestingly enough, one of the questions the Claimant was asked during his interview for this job was: If I were (sic) your supervisor and I asked you to do something that you disagreed with, what would you do? The response noted is that the Claimant said that he would “bring back and discuss.” The Claimant testified that he returned to the office, expecting that he would discuss what he perceived to be Mr. Huard’s professional negligence with someone higher up at FVFP.

[16]      On March 15, 2018, the Claimant was dismissed from his employment. FVFP was concerned about how slow the Claimant was in doing his work, how he spent time in his truck “getting ready” without being able to explain specifically what he was doing. Mr. Loland had a discussion with his Human Resources Manager and the two of them agreed that the Claimant’s employment would be terminated that day. Their concerns were the Claimant’s lack of productivity, his inability or refusal to follow direction, and his argumentative nature. After having this discussion, the Claimant had returned to the office and Mr. Loland was also upset that the Claimant had not collected from a customer on a COD job.

[17]      After having further discussion with Mr. Loland, the Human Resources Manager called the Claimant into her office and told him that he was being dismissed from his employment. The reasons given were his lack of productivity, his lack of following direction and his argumentative nature. The Claimant was given a cheque for the work he had done, though it was later acknowledged that the amount was incorrect. He had been given a cheque for $480, but was actually owed $659.35. He received this a month later on April 19, 2018. The Claimant says that this occurred only after he had complained to the provincial employment standards branch of the Department of Labour.

[18]      While FVFP likely had reasons to find fault with the Claimant’s work performance, it also had a duty at law to give the Claimant an opportunity to rectify his substandard conduct. An employer wishing to dismiss an employee must provide reasonable notice of the dismissal to the employee, or payment in lieu of notice, unless there is just cause for summary dismissal. If none of these apply, the employer has repudiated the contract of employment and is subject to liability for damages for wrongful dismissal.

[19]      The law recognizes an employer’s right to dismiss an employee from employment without notice if that employee has breached the contract of employment in a fundamental manner. For example, if the employee has been guilty of serious misconduct, habitual neglect of duty, or if he has been guilty of wilful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee. The degree of misconduct must be sufficient to show that the employee has disregarded the essential conditions of the contract of service.

[20]      Where there is an accumulation of a number of minor failings on the part of the employee, there is generally a duty on the employer to warn the employee. The employer must treat its employee fairly and with good faith, and must disclose to the employee the errors she or he is making, and give the employee an opportunity to correct the errant behaviour.

[21]      It is not always easy to discern whether a failing on the part of an employee is sufficient to justify dismissal and when the employer has a duty to warn the employee. For example, an employer cannot summarily dismiss an employee simply because of a personality conflict with other employees. On the other hand, if an employee resorts to threatening violence towards his or her co-workers, this will often justify summary dismissal.

[22]      In this case, it is clear from the evidence of both the Claimant and of FVFP that FVFP did not meet its duty to the Claimant to warn him that his conduct was falling short of what was expected of him in his side of the employment contract. Although he was told immediately prior to his dismissal about the concerns about his expected level of productivity and his difficulty in working with others, he was not given the opportunity to remedy the problem. Instead, he was summarily dismissed. None of the breaches complained of were sufficient to merit immediate dismissal. Almost every new employee can be expected to have a period of adjustment to learn their new job and learn what is expected, and if performance is initially below what should reasonably be expected, the employee should be warned and given a reasonable period of time to meet the expected standard. Here the Claimant was not given that opportunity.

[23]      The Claimant was also not warned that his interpersonal conflict with other employees and his argumentative nature was interfering with his work performance and he was not given a reasonable opportunity to correct this behaviour. If this had occurred and he continued to act as he had, oblivious to how this was affecting his employer’s business, his dismissal may have been justified. In this case, however, the Claimant was not given that opportunity.

[24]      It is somewhat understandable that FVFP immediately had reservations about whether or not it had made a mistake in hiring the Claimant. One of the complaints about the Claimant was that he “went off on tangents” and this was apparent from his testimony at the trial of this manner, as the Claimant seemed unwilling or unable to answer simple questions directly, instead giving long answers about matters unrelated to the question he was asked. It was also apparent that the Claimant had difficulty in fully appreciating his role in the employer-employee relationship. At trial he had wanted FVFP to produce documentation concerning its contract with one of its clients, despite the fact that this had no relevance to his claim for wrongful dismissal. While this might have raised red flags with FVFP about the wisdom of hiring the Claimant in the first place, once it had decided to do so, a contract of employment had been formed. The shortcomings of the Claimant as an employee, while concerning, had not yet reached a level to justify his dismissal. If FVFP wished to terminate the Claimant’s employment, it was required at law to either give him reasonable notice that his employment would be terminated, or pay him in lieu of notice.

3. Was the Claimant a Probationary Employee?

[25]      FVFP believed that it had the right to summarily dismiss the Claimant without cause because the Claimant was a probationary employee. There are a number of problems with this argument, however. Firstly, the Claimant testified that it was not a term of his employment that he would have a probation period. He denied ever receiving or signing any document making this a term of his employment contract. FVFP’s own records do not show that this was ever communicated to the Claimant or that he ever agreed to this condition. There is no mention of this in any of the Human Resources Manager’s notes or in any email presented at trial, and no formal written contract of employment was ever signed between the parties. For this to be a term of the employment contract, there must be evidence of acceptance of this condition on the part of the Claimant, either expressly or by conduct. No such evidence was presented at trial.

[26]      The Claimant testified that he was never told that he was a probationary employee. Mr. Loland believes that the Claimant was told this by the Human Resources Manager, but if this happened, Mr. Loland did not witness it and the Human Resources Manager did not testify at trial or record this on any document presented.

[27]      FVFP did prepare a document entitled “Three Month Probationary Period”, a document that the Claimant testified that he did not receive until after his employment was terminated and this litigation was commenced. FVFP believes that the Claimant did have this document because he had included it in his book of documents. The Claimant said that he had received this from the Defendant after he had commenced this action. Even if the Claimant had been given this document at the time of his hiring, some evidence of his acceptance of this condition of employment is required before it can be said to be a term of his employment contract. FVFP cannot unilaterally impose this term into the contract.

[28]      Another problem is that the document that FVFP relies on, while having the heading “Three Month Probationary Period”, goes on to state that this three months referred to will be a “training and learning period” and that “meetings and evaluations will occur as necessary if issues arise during this time and into the future.” So even if what was stated on the document had been a term of the contract of employment, FVFP breached the term by summarily dismissing the Claimant instead of providing further “training and learning” and by not “meeting and evaluating” into the future. The probationary period described in this document is not one entitling the employer to dismiss the employee immediately without sufficient cause, despite the heading on the page.

4. What is the Measure of Damages for the Claimant’s Wrongful Dismissal?

[29]      Having found that the Claimant was dismissed from his employment without proper cause, FVFP is in breach of its contract of employment and is liable in damages to the Claimant. The measure of damages in an action for wrongful dismissal is the amount of income which the employee would have earned from his employer during the period of reasonable notice, subject to a deduction in respect of any amount which the Claimant either had obtained or should reasonably have obtained during that period. The Claimant is under a duty to mitigate his damages.

[30]      The Claimant testified that after being terminated from his employment with FVFP, he sought out employment with a number of other companies in the fire protection industry. At the time of his dismissal, he was 67 years of age and he felt that this was an impediment to finding new work in the field. He supported himself on employment insurance benefits, and in December of 2018, he took another position in sales, unrelated to his certification. He was able to find very short term employment in the fire protection industry for a month in April of 2019, but after this work was competed, he was unable to afford to continue to pay for his certification. He lost his employment as a salesman at the time of the beginning of the pandemic. He has only recently found new employment in Nova Scotia in the sales field.

[31]      In assessing what a reasonable period of notice is, factors which may be taken into account include: (1) the character of the employment; (2) the employee’s age; (3) the length of service; and (4) the availability of equivalent alternative employment.

[32]      In a case called Dodich v. Leisure Care Canada, 2006 BCSC 93, the British Columbia Supreme Court acknowledged that reasonable notice awards for short-term employees have “trended upwards” in past years.

[33]      Older employees, particularly those over 50, may be entitled to a longer period of notice. Age is a factor that bears so importantly upon the prospects for other similar employment and employers who terminate the employment of older employees must appreciate the difficulty that is thrust upon older employees who are on the receiving end of a wrongful dismissal.

[34]      In this case, factors which support a shorter period of notice are the Claimant’s relative inexperience in the industry, his brief period of service with this company as well as with his previous employer, and the fact that he was with the company for such a short period of time before the signs began to appear that he was destined for conflict with his employer unless he was prepared to make significant changes in his employment behaviour. The Claimant’s argumentative nature, and his inability to appreciate his role in the organization did not bode well for his long-term employment with FVFP, and there is a reasonable likelihood that even if FVFP had tried to work with the Claimant, his unwillingness to let go of matters that were not his concern and his difficult personality would not be conducive to a happy employer-employee relationship.

[35]      Factors supporting a longer period of notice are the Claimant’s age, and the limited availability of similar employment for him. These are factors which ought to have led to an appreciation by FVFP that if it chose to breach the contract of employment by terminating the Claimant’s employment without cause and without affording him the opportunity to improve his shortcomings, the consequences would be more severe to the Claimant than for many other employees.

[36]      In this case, the evidence satisfies me that the Claimant made reasonable efforts to mitigate his damages by looking for other employment following his dismissal, but that he was unable to find reasonable alternate employment. Although the Claimant received EI benefits following his dismissal, the Supreme Court of Canada has held, in its decision in Jack Cewe Ltd. v. Jorgenson, 1980 CanLII 177 (SCC), [1980] 1 SCR 812, that the law is clear that these benefits are not to be deducted from any damages for wrongful dismissal.

[37]      Taking these factors into account, I find a proper period of notice to be three months. The Claimant was paid $22 per hour, which corresponds to an annual income of $45,760 or $3,813.33 per month. He will be awarded damages in an amount equivalent to three months’ notice ($11,440), along with his costs of $196.00.

Order

[38]      For the foregoing reasons, the Claimant is awarded judgement against the Defendant Fraser Valley Fire Protection Ltd. in the sum of $11,440 plus costs of $196 for a total of $11,636. The Claim against Reuben Loland is dismissed without costs.

 

 

________________________________

The Honourable Judge K. D. Skilnick

Provincial Court of British Columbia