Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2021 A BRITISH Columbia company's "vindictive and malicious" handling of a worker's dismiss- al means it must pay $60,000 in aggravated and punitive damages on top of unpaid wages and pay in lieu of notice, the B.C. Supreme Court has ruled. Carly Fobert, 26, worked as an intake special - ist for MCRCI Medicinal Cannabis Resource Centre, a provider of training programs and support for patient education and medical authorization for medicinal cannabis based in Vancouver, starting in December 2017. Her position involved booking appointments with physicians regarding prescriptions for medici - nal marijuana, reviewing patient forms, man- aging the company's email, and training other staff on intakes. Fobert's employment contract included a termination provision that allowed for 30 days' notice of termination or pay in lieu for termina - tion without cause. In April 2019, MCRCI's parent company, Global Health, went public and its CEO re- placed MCRCI's founder and president. Soon after, managers from Global Health began coming to the MCRCI office to help with inef- ficiencies, prompting rumours of a restructur- ing. The rumours were true and MCRCI termi- nated Fobert's employment on May 24. MCRCI said the reason for termination was that new systems were being implemented that would automate the booking process for patients and physicians. MCRCI offered Fobert two weeks' pay as sev - erance. She did some research and found out that, although two weeks was her severance entitlement under the B.C. Employment Stan- dards Act, her employment agreement provid- ed for 30 days' pay in lieu of notice. As a result, she provided some documents and a copy of her employment agreement to the company and was advised that she would be "paid out" two days later. Severance pay delayed However, on May 31, MCRCI informed Fobert that they had to sort things out and it might take a few more days, but she would get paid. However, this was followed by a text message to all terminated employees saying there was no money in the MCRCI account and each cheque would have to be reviewed and approved by Global Health. Six days later, on June 5, a Global Health manager invited Fobert to a meeting, although she wasn't sure with whom she would be meet - ing. She went to the meeting assuming she would get her unpaid wages and an additional week's severance. An executive with Global Health, Justin Liu, took Fobert into an office surrounded by boxes being unpacked and said that "my understand - ing is we have the close-out contract for you or whatnot." When Fobert explained about her employment contract's stipulation of 30 days' pay in lieu of notice, Liu said "you guys mis - placed a lot of money… we've taken a hard- nosed approach of just saying we don't care anymore… Like, we're willing to go to court, willing to sue, and we have endless resources to do so." Fobert denied being involved in any mis - placement of funds, but Liu continued to say the company would challenge severance claims, using a profanity. Fobert offered to meet somewhere in the middle between her request for one month's severance and the leg - islative minimum and Lieu said, "an extra 500 bucks and that's it." Fobert again tried to discuss her "proper sev- erance," but Lieu said that he told any other person he's had the conversation with to "f- -- off." He added that she could go "through the employment board… or you can take the 500 and sign the document and we can both go our own ways." He also made It clear that if she didn't agree to the $500 then, it would be off the table. The Global Health manager later said she had looked for Fobert for the meeting but when she saw Fobert was with Liu, she left them to discuss matters. She didn't communicate with Fobert again. Anxiety in meeting's aftermath Fobert was shocked at the allegations of mis - placed funds but was confused as to why Liu thought she was involved as she had no spend- ing authority. She had an anxiety attack after the meeting and later attended counselling. She also started having trouble sleeping and eating at times due to anxiety, which she had never had problems with before. Fobert filed a complaint of wrongful termi - nation against both MCRCI and Global Health, claiming damages for reasonable notice, aggra- vated damages and punitive damages. The two companies claimed Fobert was terminated due to a restructuring and Liu offered her a settle- ment in good faith. Fobert reached a settlement agreement with MCRCI for her employment standards com- plaint in which MCRCI agreed to pay her the balance of her unpaid wages, statutory holiday pay and two weeks severance. The agreement stipulated that it did not settle any matters "that are not under the act, including the complain- ant's lawsuit…" The court didn't believe the Global Health manager's assertion that she had planned to meet with Fobert but didn't when she saw Liu was with her. The evidence indicated that the plan was for Liu to meet with Fobert and rep - resented both companies. In addition, MCRCI and Global Health had "a relationship with an element of common control" and they consti- tuted common employers that both had liabil- ity for any damages owed to Forbert, said the court. The court determined that Fobert's employ- ment contract was void and unenforceable because the 30-day notice period set out in the termination provision could violate employ- ment standards in the future — the notice pe- riod wouldn't change if Fobert's employment lasted long enough to the point where the leg- islative minimum entitlement would surpass 30 days. As a result, Fobert was entitled to com- mon law reasonable notice, which the court found should be eight weeks based on her age, the availability of similar employment and the lack of specialized training needed for her job. The court also found that Liu's conduct dur - ing the termination meeting was "appalling, harsh and reprehensible," as he used aggres- sive and intimidating language coupled with allegations of financial impropriety. He also pressured Fobert into accepting nothing more than $500 severance, which was below her statutory entitlement. This led Fobert to suffer from anxiety and related symptoms. The court felt $25,000 in aggravated damages was appro - priate. In addition, the court awarded punitive damages of $35,000, as Liu's conduct during the termination meeting was accompanied by an ongoing refusal by the companies to pay Fobert's unpaid wages and statutory severance and unfounded allegations during the litiga - tion process. The court characterized this be- haviour as "vindictive and malicious." In total, MCRCI and Global Health were or- dered to pay Fobert $60,000 in aggravated and punitive damages plus eight weeks' pay, minus the two weeks' severance she had received in the settlement. For more information, see: • Fobert v. MCRCI Medicinal Cannabis Resource Centre Inc., 2020 BCSC 2043 (B.C. S.C.). Jeffrey R. Smith is the editor of Canadian Employ- ment Law Today. He can be reached at jeffrey. smith@keymedia.com, or visit www.employment- lawtoday.com for more information. Delay in paying statutory entitlement, unenforceable termination provision, unfounded allegations all part of employer's bad-faith conduct BY JEFFREY R. SMITH Mean-spirited firing gets B.C. worker more than $60,000

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