Canadian Employment Law Today

September 26, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian Employment Law Today | 3 Cases and Trends Canadian HR Reporter, a Thomson Reuters business 2018 Worker discourages prospective co-worker, gets fired Employer felt worker's negative comments causing job candidate to decline job offer was breach of trust, but adjudicator found dismissal was too harsh BY JEFFREY R. SMITH A BRITISH COLUMBIA worker whose telephone conversation with a prospective employee convinced her to decline a job of- fer from his employer did not deserve ter- mination of his employment, an adjudicator has ruled. Rakesh Chand worked as a freight for- warder for ACE AllCargo Express, a freight forwarding company based in Richmond, B.C. ACE hired him on Jan. 26, 2015. ACE's employee handbook outlined a progressive disciplinary process that indicated some steps could be skipped "whenever the com- pany deems that circumstances warrant." For most of three years with ACE, Chand had a clean disciplinary record — with the exception of a few instances when he was late due to traffic. After receiving feedback on his tardiness, Chand moved closer to work, despite higher rents in Richmond. Later that year, near the end of 2017, an employee with a trucking company that was one of ACE's largest clients was offered a job with ACE. e new employee was to start on Jan. 2, 2018. ough she wanted to keep qui- et about it, employees of ACE began to call her so she began telling people with whom she worked about her plans. Chand was one of those people, as he had worked with her in her role with ACE's client. At some point near the end of 2017, Chand called the employee-to-be to ask her why she was leaving the trucking company because he was appreciative of what she had done in her current position to help ACE. e pro- spective employee replied that she often had to work long days, which sometimes upset her. She asked him about various aspects of working for ACE. According to the prospective employee, Chand asked her how much she had been of- fered by ACE and he said the pay at a certain competitor for whom he had worked previ- ously was "a hundred per cent better." Chand mentioned that he hadn't had a raise for three years, he had to do his own paperwork and ACE was a "very political company" with regards to giving promotions. Chand also said he was going to look for a different job after Christmas. Chand denied saying he had worked for the competitor — he had worked for a sub- sidiary — though he acknowledged saying the benefits were better than at ACE — the competitor paid 100 per cent of premiums while ACE paid 80 per cent. He also denied saying ACE was a political company or that she was better off with another employer. Job candidate scared away After her conversation with Chand, the pro- spective employee decided she didn't want to work for ACE and informed the company she wouldn't be accepting the job offer. e company eventually changed her mind by offering her a higher wage than the initial job offer. e president of ACE called Chand into a meeting and asked him if he had spoken with the prospective employee. Chand ad- mitted he had but denied saying anything to discourage her from joining the company. He suggested the prospective employee had misconstrued some of the things he had said, but he didn't deny having a conversation with her about working for ACE. ACE's president was shocked Chand would say negative things about the company, as he felt Chand had always been treated fairly — including permission to go on an extended leave despite lacking the credits. Following the meeting, ACE terminated Chand's em- ployment for a serious breach of trust. Chand filed an unjust dismissal com- plaint, claiming the prospective employee misunderstood the conversation and he wasn't given a full opportunity to explain what they had discussed. e adjudicator found that ACE was con- vinced the prospective employee's version of the conversation was "the only possible explanation" for what happened and didn't accept Chand's insistence that he didn't say some of the negative things attributed to him. ough ACE believed the fact the pro- spective employee declined the job offer was sufficient evidence of what Chand had said to her, the only evidence was the accounts of the two people involved in the conversa- tion. ere was no doubt the conversation with Chand led to the prospective employ- ee's decline of the job offer, but ACE didn't consider the possibility that the prospective employee could have misinterpreted some of what Chand said to her — such as the dif- fering versions of what was said about the competitor's pay being 100 per cent better versus them paying 100 per cent of benefit premiums, for example. e adjudicator also found that it was possible the sole purpose of Chand's call was not to discourage the prospective employee from joining ACE, as they had regular con- tact for business reasons. Since the news was out about the prospective employee's inten- tion to come to ACE, it made sense that it came up in the conversation, said the adju- dicator. In addition, the adjudicator didn't find any reason to believe that the conversation and the prospective employee's subsequent actions did irreparable harm to ACE's rep- utation, as only "a handful of people" were aware of it. In fact, terminating Chand's employment because of the conversation probably made more people aware of it, the adjudicator added. Either way, the prospec- tive employee still ended up joining ACE, though at a higher pay rate. e adjudicator determined that the ef- fects of the conversation were relatively minor and not serious enough to aban- don ACE's progressive discipline scheme and warrant dismissal of an employee with almost three years of discipline-free ser- vice. ere was no reason to think Chand wouldn't learn from lesser discipline and take advantage of an opportunity to improve — particularly since his decision to move closer to work after discussion about his tar- diness demonstrated he was "a person who is willing to change behaviour and someone who is likely to respond responsibly to cor- rective feedback or discipline from his em- ployer," the adjudicator said. As a federally regulated employer, ACE was ordered to pay Chand his entitlements under the Canada Labour Code — two weeks' pay in lieu of notice, five days' wages severance pay and three days' holiday pay, totalling $3,100.50. Chand didn't request reinstatement, so the adjudicator didn't con- sider it as part of the remedy. For more information see: • Chand and ACE Allcargo Express Inc., Re, 2018 x 4461 (Can. Lab. Code Adj.). After the conversation, the job candidate changed her mind and declined the job offer

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