Canadian Employment Law Today

Canadian Employment Law Today | 7 Cases and Trends Canadian HR Reporter, 2019 of employment that stated there would likely "be a vacancy in the current service manager position in the near future." In the agreement, Synergy said it was offering Booton the posi- tion of interim service manager "subject to there being a vacancy in the current service manager position." e agreement went on to say that it would give Booton an opportunity to "prove you are worthy" of the job by placing him in the role for at least two months without hir- ing anyone else. Booton accepted the offer. Conflict of interest could lead to dismissal Synergy also had a conflict-of-interest policy that dictated employees could not use com- pany vehicles, tools or materials to perform non-Synergy work; nor could employees perform non-Synergy work for anyone they know or should know does business with Synergy, without authorization. e policy instructed employees who encounter a pos- sible conflict of interest to discuss it with management before proceeding. Anyone found to be in a conflict of interest "may be subject to immediate termination." A binder with this and all Synergy poli- cies and procedures was given to all em- ployees. Booton had three of these binders in his office, but he claimed he never looked through them. While employed with Synergy, Booton often did "side jobs" — work done after hours for someone who wasn't a customer of the company. In June 2014, he was on va- cation from Synergy when he did work for nine days in Dawson Creek, B.C. for a man who had been a customer of Synergy's two years earlier. However, Synergy wasn't in- volved in the 2014 project for which Booton did some work. e two owners of Synergy were aware of Booton's side job in June 2014 and were concerned he had worked on his vacation, but there was no discussion of the conflict- of-interest policy or any disciplinary action. In the summer of 2015, Booton did some more work for the same client at the client's residence and another property. He was paid in cash and didn't tell anyone at Syn- ergy about it. A performance review in August 2016 in- dicated that some aspects of Booton's work needed improvement. Booton disagreed and, after a discussion with Joe Guiotto, put a positive spin on things. In January 2017, Booton asked Joe Gui- otto some questions about Guiotto's son, who worked as a plumbing technician with Synergy but didn't always work on jobs the company was doing. Guiotto often as- signed work around the office for his son to do, and Booton wasn't clear on what the son's job was. Guiotto told Booton it was none of his business. In April 2017, a Synergy employee who worked on collecting overdue accounts told Guiotto that a particular client who wasn't paying was having Booton perform side jobs. In addition, the client for whom Boo- ton had done side work in 2014 and 2015 had an overdue account. Guiotto called the second client to find out why he hadn't paid off his account, and the client said that he didn't owe Synergy any- thing because he had paid Booton $38,000 for work on his residence. Guiotta felt this was "extremely serious" and looked into the client's files, which revealed that Booton had done work for both clients who hadn't paid. In addition, Booton had used Synergy's name to obtain permits for the work, for which he had been paid personally. Guiotto discussed the matter with Syn- ergy's general manager of construction and they decided to terminate Booton's employ- ment. On April 4, they met with Booton and showed him unpaid invoices for the clients in question and told him the one client had said Booton had done $38,000 of side work for him. ey informed Booton he had breached the conflict-of-interest policy and gave him a termination letter. Booton sued for wrongful dismissal — arguing he didn't breach the conflict-of-in- terest policy and was fired because Synergy wanted to eliminate the service department and he had asked uncomfortable questions about Guiotto's son — and defamation — the latter because Guiotto told Synergy's dispatcher and a group of employees at a meeting that Booton had said that, because the company hadn't been paid by clients be- cause of Booton's side jobs, Booton had sto- len money from Synergy. e court found that there was no evi- dence Synergy was trying to eliminate the service department or the termination was motivated by Booton's questions about Gui- otto's son, so the issue was whether Booton had breached the policy. No prior discussion of policy e court noted that company policies had not been given to or discussed with Booton when he was hired, but Booton had posses- sion of the binder in his office. Regardless of Booton's knowledge of the policy, it was clear that he performed side jobs in 2014 that Synergy was aware of. Since Booton wasn't warned or disciplined in 2014, there was no reason for Booton to think he was breaching company policy by performing side jobs, the court said. "In my view, Synergy and the co-owners of the company condoned (Booton's) side jobs... in 2014," said the court in finding Synergy didn't apply its conflict-of-interest policy consistently. "It would not have been unreasonable for him to believe that the side work that he later did... would also be condoned." Since Synergy didn't warn Booton about any potential policy breach, it wasn't ap- propriate to jump to termination when he decided he was in breach later on — par- ticularly since the policy itself only said a conflict of interest "may" be subject to im- mediate dismissal, not definitely. Before dismissing Booton, Synergy would have to warn him that a future breach would result in immediate dismissal, the court said. e court found Booton was entitled to 4.5 months' reasonable notice for dismissal. As for Booton's claim of defamation, the court found that while Guiotto may have felt Booton's side jobs took money from the company, his phrasing that Booton had sto- len money could have been interpreted by some to mean Booton had directly stolen money. Booton failed to prove any quanti- fiable damages from the comments, so the court determined only a marginal defama- tion award was appropriate. Synergy was ordered to pay $34,275 in wrongful dismissal damages plus $500 for defamation. For more information see: • Booton v. Synergy Plumbing and Heating, 2019 BCSC 276 (B.C. S.C.). « from B.C. EMPLOYER on page 1 Client said he didn't owe company any money after paying worker CREDIT: ANDREY_POPOV/SHUTTERSTOCK

• Cover