Canadian Employment Law Today

Canadian Employment Law Today | 3 Cases and Trends Canadian HR Reporter, a Thomson Reuters business 2018 Worker thrown under the bus without just cause Bus tour company made unsupported allegations following dismissal but none of them convinced the adjudicator BY JEFFREY R. SMITH A MANITOBA COMPANY has been unable to support its claim that it had just cause to dismiss a manager and must pay $14,000 in damages for unjust dismissal. In 2012, Maisie Hicks was involved in the start-up of Winnipeg Exclusive Bus Tours, a company offering charter tours by motor coach from Southwestern Manitoba to des- tinations across North America. Hicks con- tributed $3,000 towards the start-up costs of the company and worked for the compa- ny for its first few months without taking a salary. She believed she was a partner in the company and asked for a written agreement indicating as much, but she was told to wait and see how the business developed before the company determined the specifics of re- warding her investment. In January 2013, Hicks officially became a paid employee of Exclusive Bus. She worked as a general manager, fixed operations and reported to the most senior executive at Ex- clusive Bus. She often advised the executive on various matters, including decisions on purchasing buses. ree years later, the company's owner decided Hicks would only be recognized as having an equity position in the company if she paid $660,000 as her share of the start- up costs. Hicks was disappointed at this, as she couldn't afford to pay that much, nor could she afford a lawyer. She was also going through a family bereavement at the time. Exclusive Bus offered to return Hicks' $3,000 payment plus interest if she signed a release, but Hicks declined. She continued to have a difference of opinion with the com- pany on whether she should be recognized as having an ownership interest, but the company stuck to its belief that she needed to contribute a greater amount of money to be considered a partner. e senior executive gained more knowl- edge of the business over time, gradually needing Hicks' advice less and less. In March 2017, Hicks was called into a meeting where she was given a letter about "expected per- formance and behaviour," which referred to an incident where it alleged Hicks had been indiscreet about discussing Exclusive Bus's business with a competitor. Hicks was shocked by that particular allegation and wasn't able to focus on anything else in the letter. She didn't agree with the allegations in the letter but signed an acknowledgment that she was aware of its contents. No reasons given at termination meeting Five months after Hicks received the letter, Exclusive Bus terminated her employment effective Aug. 10, 2017. She wasn't given any written reasons, but she was told ver- bally that the company was downsizing. She found out later that Exclusive Bus hired someone else to perform her tasks, so she filed an unjust dismissal complaint under the Canada Labour Code. Exclusive Bus claimed her failure to keep company business confidential was just cause for dismissal, citing an email it received from an official at a competitor from June 27, 2018. e email described an incident in which the competitor subcon- tracted a bus from Exclusive Bus to cover for a breakdown of one of its own buses. e bill for the subcontracted bus was high, so the competitor complained to Hicks. e official alleged that Hicks had replied that Exclusive bus had new high pricing because it was having financial difficulties. After the complaint, the competitor didn't receive any more requests from Exclusive Bus to help with overbookings. Hicks claimed she had spoken with the competitor's official about the new pricing policy, but didn't believe she said anything about Exclusive Bus having financial diffi- culties. Other than the email, there was no account of the conversation. She also denied retaliating against the other company and if it didn't receive further business through her, it was because she dealt with buyers and vendors through Exclusive Bus's policies, including pricing. At the hearing, Exclusive Bus claimed Hicks was "gossipy" in the office, but offered no specific examples. Hicks said she dis- cussed matters involving employees when necessary to the business and no further, but sometimes her conversations could be overheard in the office. Exclusive Bus also said it had been penal- ized by U.S. authorities twice for commit- ting violations, which was a failure on Hicks' part as she was responsible for ensuring compliance with transport regulations in Canada and the U.S. Hicks countered that she was diligent about compliance and she was only aware of them after they had hap- pened. Once she learned of the violations, she acted swiftly to report them and en- sured they wouldn't happen again. e adjudicator found Exclusive Bus didn't have enough evidence to support its claim of just cause for dismissal. e email regarding the incident with the official from the competitor was dated after Hicks' ter- mination and no reason for termination was offered at the time of her dismissal. In ad- dition, there was no further evidence from the official who allegedly sent the email, so there was no solid evidence refuting Hicks' version of the conversation — evidence sup- porting just cause must be more convincing than that, said the adjudicator. e adjudicator also found the company's other reasons for dismissal were vague and unsupported — no examples of its "gossipy claim," which Hicks adequately explained, and the violations were not necessarily her fault. e violations were related to driver training and, while Hicks was responsible for that, other employees were involved and she couldn't be expected to cover everything. "e fact that a mistake occurs within the scope of a supervisor's mandate does not automatically mean that the supervisor has committed a disciplinable act," the adjudica- tor said. "Exclusive Bus did not establish any lack of dedication by Ms. Hicks, any unwill- ingness or lack of due diligence on her part in following instructions or any instances of poor judgment on her part." e adjudicator determined that Exclu- sive Bus didn't establish that it had just cause to terminate Hicks' employment. Hicks claimed that her economic losses from her dismissal amounted to more than $19,000, but she had worked at another company for a little while and then started her own consulting business. However, she claimed she couldn't achieve her pre-dismissal level of income until her non-solicitation clause with Exclusive Bus expired. Exclusive Bus was ordered to pay Hicks $14,000 in damag- es, which was equivalent to about 10 weeks' pay, for lost income from her termination. For more information see: Hicks and Winnipeg Exclusive Bus Tours Inc., Re, 2018 CarswellNat 5247 (Can. Lab. Code Adj.). Employee felt she was a partner in the company after contributing to startup costs

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