Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2018 October 24, 2018 | Canadian Employment Law Today CREDIT: RUSLAN GRUMBLE/SHUTTERSTOCK ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www.employmentlawtoday.com for more information. dismissal and unpaid wages, claiming more than $110,000 in damages. He opted to drop the demand to $25,000 in order to pursue the matter in small claims court. e court found JBC didn't have a policy regarding promotional policies, so Dang couldn't have breached company policy. In addition, it was an established practice that employees sometimes received gifts from customers and suppliers and took these gifts home, and there was no requirement that the gifts had to be offered to other employees before taking them home. Dang didn't think he was doing anything wrong when he took the gifts home and there was no evidence he was, said the court. "In my view, it was unreasonable for the employer to take the position that it did, especially without speaking to (Dang) first or giving him an opportunity to explain," the court said. "Based on the evidence, I find that the jacket and TV were given to (Dang) from the lighting company as a promotional gift and he was therefore entitled to keep them." e court also found there was no evidence that Dang improperly ordered lightbulbs. Dang normally didn't order supplies and in the case of the lightbulbs, he received authorization from the garage manager. In addition, most of the bulbs were at the company's premises and all the invoices were out in the open and paid by the company. If management didn't approve of the amount of bulbs ordered, it should have overseen the payment more diligently, said the court. In addition, Leung wasn't even aware of the amount of lightbulbs ordered — he was only concerned with his gaming licence when the issue of a grow-op was randomly raised, the court said. "ere was no evidence whatsoever that (Dang) was involved in a grow-op or that he ordered the bulbs for use in a grow-op," said the court. "ey ought to have taken the time, as (the garage manager) suggested to them, to speak with (Dang) and do some investigating before taking the drastic action of calling the police." e court found that JBC acted in order to protect itself and preserve its gaming licence than a belief Dang had done anything wrong, in case Leung was questioned by the gaming authorities. Dang's threat to report the mechanic issue was also likely a consideration, as it probably made management want to be rid of him. is was unreasonable, especially since he had worked many unpaid hours for the company's benefit, the court said. In the end, JBC didn't have just cause to terminate Dang's employment and didn't give him an opportunity to explain things, which would have easily cleared things up, said the court. JBC was on the hook for five months' pay in lieu of notice plus an additional three months for bad faith conduct on JBC's part. In addition, the court found JBC responsible for $10,000 in damages for "emotional impact on (Dang) and mental injury," plus $5,000 in punitive damages for JBC's "outrageous, high- handed or malicious" actions. e court also found Dang was entitled to $25,000 in unpaid overtime and holiday pay, making the total damages $67,925.36. However, since the maximum amount allowed was $25,000, JBC was ordered to pay that amount plus more than $7,000 in costs and pre- and post-judgment interest. For more information see: • Dang v. JBC Coach Lines Inc., 2018 CarswellOnt 12614 (Ont. S.C.J.).

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