Canadian Employment Law Today - sample

Employer's self-preservation instinct leads to wrongful dismissal Company accused worker of theft and fraud, but was more worried about gaming licence than investigating the facts of the matter BY JEFFREY R. SMITH A n Ontario company's quick trigger on firing an employee was a knee-jerk reaction that was an attempt to distance itself from an incorrect perception of the employee than any real cause for dismissal, the Ontario Superior Court of Justice has ruled. JBC Coach Lines is a tour operator that runs coach tours to various attractions and trips to casinos. Travellers Auto Cars Limited runs a garage where cars and buses are repaired, which is owned by the same individual as JBC, Danny Leung, and shares offices with the tour company. JBC buses park at the garage and are repaired in the Travellers facility. In 2013, JBC hired David Dang as a bus driver. Dang eventually was promoted to an office manager position that involved scheduling tours, paperwork, tracking driver hours, and ensuring the company ran smoothly. He also performed some minor work on JBC's buses such as changing light bulbs, changing oil, and checking the air conditioners. He also performed some tasks for Travellers, though his paycheque came from JBC. Dang officially worked 40 hours per week, but the reality was that he worked more than that — usually 7 a.m. to 11 p.m. Monday to Friday and noon to late afternoon on Saturdays. According to Dang, occasionally he worked until 1 a.m. on weeknights if there were any problems. In addition, he worked every holiday, as the bus tours ran every day, including holidays, but he didn't receive holiday pay. About one year after he started working in the office, Dang complained to Leung about the long hours he was putting in. Leung told him he would take care of him and knew he worked hard, and Dang ac - cepted this response. However, a short time later when an assistant was hired, the assistant was assigned to help with admin- istration, not to help with Dang's duties. During Dang's tenure as the office manager, JBC switched to energy efficient lighting with free light bulbs as part of a government retrofit program. e garage manager for Travellers authorized him to order more lights for the garage and around the building, so he did. Ordering supplies wasn't normally part of his job, but Dang took care of the lightbulb orders because the lighting company had initially contacted him and the garage manager had given him authorization. Employee accepted free gifts Because of the lightbulb orders, the lighting company shipped a free promotional jacket to Dang, which he offered to other employees but took home when no one wanted it. After another order, the lighting company sent a small TV, which Dang showed to others but took home without offering it to anyone. In 2015, the chief mechanic for Travellers quit his job and the company didn't hire anyone to replace him. Instead, the company allowed another employee to do the mechanic work on the buses. In December, Dang discovered that this individual wasn't licensed to be a mechanic and Travellers had been falsifying bus inspection certificates that were required by the Ontario Ministry of Transportation. Concerned about the potential consequences for customer and driver safety, Dang confronted Leung about the falsification of inspection certificates. He said he wanted to resign because he didn't want the responsibility of sending a potentially unsafe bus on the road and didn't want any buses to go out until the company found a qualified mechanic. Dang gave Leung a deadline in early 2016 to fix the problem and said he would report the company to the ministry and resign if things weren't taken care of by the deadline. On Feb. 5 2016, JBC's bookkeeper asked Dang if he knew anything about an invoice for 100 electrical plugs. Dang said he hadn't ordered them and they shouldn't pay for them. He contacted the electrical company to take them back and they offered a 20 per cent discount to keep them. Dang declined, as he felt the electrical company was trying to pressure him into buying the plugs. Management jumped to conclusions e company's second-in-command, Angela Chiu, was informed of the invoice for plugs and all the lightbulb orders and discussed it with Leung and the garage manager. According to Chiu, the garage manager suggested the lightbulbs could have been ordered to support a marijuana grow-op, which was concerning for them as any association with a grow-up could affect Leung's gaming licence — which permitted him to make deals with casinos to take his buses there, accounting for 90 per cent of JBC's business. e garage manager suggested they talk to Dang about it. However, Chiu called the police and summoned Dang to her office, where she told him he was fired. e police then told him Leung and Chiu were pressing charges against him for fraud, as they were accusing him of stealing the promotional jacket and TV. e police charged Dang with fraud un - der $5,000, but the charges were eventually dropped and Dang's case dismissed. Dang was devastated by his termination, as he felt he had put a lot into the company and didn't feel he had stolen anything — the company had no policy on accepting promotional gifts and employees hadn't been told they couldn't take them home. In fact, he and other employees had received wine, cookies, and other gifts from customers on various occasions. Dang filed a complaint for wrongful 4 Canadian HR Reporter, a Thomson Reuters business 2018 CASE IN POINT: WRONGFUL DISMISSAL EMPLOYERS HAVE an obligation to investigate employee misconduct before deciding on a course of action. However, one employer was so worried about being guilty by association, it didn't bother to investigate whether the employee was actually guilty. BACKGROUND

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