Canadian Employment Law Today - sample

Canadian Employment Law Today | 3 Cases and Trends Canadian HR Reporter, a Thomson Reuters business 2019 Worker overestimates changes to position Conflict with co-worker, manager's refusal to make worker's suggestions company policy not repudiations of employment contract: Court BY JEFFREY R. SMITH A BRITISH COLUMBIA worker has lost his constructive dismissal claim that stemmed from his employer's refusal to adopt his suggestions into company policy and conflict with a co-worker. Reza Baraty, 70, was hired by Wellons Canada — a manufacturer and supplier of wood and gas-powered systems and equip- ment for the lumber and oil sands fields based in Surrey, B.C. — in October 2012 to be the company's chief estimator. e chief estimator position was involved in preparing estimates for projects and at the time Baraty was hired, the estimating depart- ment had one chief estimator and one esti- mator. All estimates by each were reviewed by the other — a process called "counter- checking." It was a collaborative environ- ment, though Baraty as the chief estimator was responsible for assigning new estimates received from the sales department. He also had to monitor workflows and schedule va- cations for department staff, though most of the job involved doing estimates. Soon after he was hired, Baraty developed a document on procedures that he felt would help with the structure of the estimating process and reduce arguments between the other estimator and his predecessor — who had left for medical reasons and returned to do some part-time estimating. e docu- ment also identified tasks to be done only by the chief estimator, but the other estimator believed some of those tasks were normally done by whomever was assigned to the par- ticular estimate. Wellons' general manager accepted the document and presented it to an auditor who had concerns about discrepancies be- tween written estimates and actual costs. e document wasn't officially made into company policy, though Baraty was under the impression that it had been, despite the fact not all of the practices were followed — for example, the document recommended departmental meetings every day or every second day but this didn't happen. Baraty began having trouble with the oth- er estimator, who would send his comments from counterchecking Baraty's estimates not just to Baraty, but other employees in differ- ent departments. Baraty felt the comments should only be going to him and complained about it to the general manager. e relationship between Baraty and the other estimator worsened to the point where they only communicated by email and avoided each other in person. is seemed work fine, as they processed 150 estimates per year with few problems for Wellons. Worker felt he was being pushed out In April 2017, a new general manager joined Wellons. He called a meeting to discuss a particular project and invited the other es- timator but not Baraty. Baraty took offence, and the new general manager later invited him to join. e next day, the general man- ager met again with the other estimator to walk through a spreadsheet on the project as a training session. Baraty wasn't invited because he hadn't worked on it. Baraty believed that the other estima- tor had called both meetings and the fact he hadn't been invited to either was a sign that Wellons was trying to push him out. He wrote to the new general manager on May 4 to say it wasn't possible for him to continue his job due to "continued insolences and in- tolerable behaviour of estimation staff (the other estimator) which insofar has caused me several strokes." He said the other esti- mator was under his supervision and they should follow the procedures he had devel- oped. He stated he would stop coming into his job as of the next day until he received the company's "written acceptance of com- pany's official estimation procedures copied by management to department managers and staff and end to continued harassment by (the other estimator)." If Wellons failed to meet his demand, he said he would "seek le- gal remedies and stop my work to existence of undesirable workplace, insult, harass- ment, and intentional humiliation." e general manager responded and ex- plained it was an accident he was missed for the first meeting — he apologized for the "honest mistake" — and he called the second meeting to walk through a spreadsheet with which Baraty had not been involved. Baraty maintained that the other estima- tor had called the meetings and repeated his demand for confirmation that his estimation procedure would be followed by all manag- ers and staff. e general manager replied that the procedures had not been made company policy so he couldn't meet Baraty's demand. He requested Baraty report for work the next day or inform the company of his intentions regarding his job. e general manager reviewed Baraty's procedures and was willing to meet to dis- cuss them, but Baraty still felt he was being pushed out because the general manager told him that, under the current circum- stances, he would be managing the estima- tion department while Baraty remained responsible for assigning work and training a new estimator. ey met the next day and discussed general ideas about the estima- tion department and a vacation request. e request was approved and Baraty went on vacation June 2, but never returned to work. e other estimator was appointed to the position of chief estimator and Baraty sued for constructive dismissal, arguing the general manager's assumption of authority meant Baraty was being demoted. e B.C. Supreme Court found Baraty tried to get the new general manager to enforce his written estimation procedures and make the other estimator comply with them, but was unsuccessful. Since he misunderstood that the procedures had not been made company policy, he interpreted the general manager's refusal and statement about managing the de- partment to be a demotion. However, the court also found that even if Baraty's belief was correct, the changes to his position weren't substantive enough to con- stitute constructive dismissal — there was no change to Baraty's pay, title, or responsi- bilities regarding assigning work, training a new estimator, and monitoring workflow in the department. e court pointed out that "not every change to the employment con- tract will be so fundamental so as to allow the employee to treat the change as amount- ing to a repudiation by the employer." "(Baraty's) role as chief estimator was nei- ther eliminated nor fundamentally changed," said the court. "(He) was therefore not en- titled to treat his contract of employment as being breached by (Wellons)." e court also found the poor relationship between Baraty and the other estimator and Wellon's inability to fix it could not be seen as repudiation of the employment contract. "Unfriendliness, confrontations between co-workers or even some hostility and con- flict will not amount to constructive dismiss- al where the employee is still able to perform his or her work," said the court. "e thresh- old for a claim of constructive dismissal based on the employer's conduct in the workplace is whether a reasonable person in the circumstances should not be expected to persevere in the employment." e court dismissed Baraty's claim, deter- mining he had not been subjected to condi- tions that indicated an intention to not fol- low the employment contract. For more information see: • Baraty v. Wellons Canada Corp., 2019 CarswellBC 39 (B.C. S.C.).

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