Canadian Employment Law Today

Canadian HR Reporter, 2019 A shaky foundation for dismissal Alberta architectural firm didn't give enough notice for lack-of-work dismissal and couldn't prove just cause either BY JEFFREY R. SMITH AN ALBERTA employer must pay a former employee more than $57,000 in wrongful dismissal damages after initially claiming it dismissed him for lack of work and later pre- senting a shaky argument for just cause. Jeffrey Hickaway, 64, was hired in July 2005 by Riddell Kurczaba — an architectural firm based in Calgary — to be a senior architec- tural technologist. At the time, Hickaway had 30 years of experience in similar roles for vari- ous companies. He worked on a few different projects for the firm, including a Shell Energy expansion, an Esso quality assurance labora- tory and a development of a horse race track. As part of his compensation, he received a quarterly bonus that all employees received. A year later, Hickaway was promoted to the position of production manager. In De- cember 2006, Hickaway received a positive performance review, with a note that he had trouble keeping up with paperwork and an acknowledgment that he frequently had "too much work on his hands." Keeping up with paperwork such as timesheets and expense claims was also a common problem with many Riddell Kurczaba employees and the firm's clients approved all the expenses. On the Shell project, Hickaway caused a rift when he contacted the county in question directly about permit issues and also contact- ed the general contractor about a construc- tion issue that would require re-drafting of certain drawings. is was contrary to Shell's wishes and the firm's instructions. Hickaway explained that contacting the contractor was normal practice and only became an issue when the contractor changed some personnel — Hickaway had been recognized for dealing with a permit issue earlier in the project in a similar way. However, this increased tension that was already growing on the project due to pressure from the contractor and Shell had Hickaway removed from the project in Octo- ber 2008. e firm's owners didn't discuss the matter with him and he wasn't warned of any potential discipline stemming from it. Around the same time, the firm's owners raised concerns over missed calls and dead- lines, but they didn't provide any specific instances. Hickaway said that he always submitted permits and drawings on time. Termination for lack of work On Nov. 20, 2008, Riddell Kurczaba termi- nated Hickaway's employment, claiming a lack of work for him. He was also told that one of its clients didn't want to work with him. e firm gave him two weeks' sever- ance pay, plus overtime and vacation pay. It also told him to keep his company car, as the owners felt he "trashed" the cars he used and it wouldn't be worth much to the firm. When Hickaway received his record of employment (ROE) and final paycheque, the ROE indicated the car was a benefit and the firm deducted $9,375 for it. Hickaway didn't want the car to be treated like employment income for employment insurance reasons and asked about buying the car outright and receiving a new ROE. e firm made an of- fer in February 2009 to get things sorted out, but Hickaway didn't respond. He was satis- fied with the offer, but he was waiting for a revised ROE before transferring the car. By May 2009, the car issue still hadn't been resolved and Riddell Kurczaba wanted to get the car transferred to Hickaway for liability purposes. With no formal response from Hickaway, one of the firm's owners called the police to report the car stolen since it was still under the firm's ownership. Hickaway filed an action for wrongful dis- missal, and the firm responded by claiming just cause due to performance deficiencies — including insubordinate and disobedi- ent behaviour related to the Shell project, timesheet and expense claim issues and a failure to follow through with clients. No discipline, no just cause e Alberta Court of Queen's Bench found that Riddell Kurczaba could not prove just cause for dismissal, as all of the issues it claimed as reasons for dismissal — insubor- dination, tardy paperwork and client follow- through — were never raised with Hickaway as problems before he was terminated. Be- fore Shell removed Hickaway from its proj- ect, the evidence showed the firm was aware Hickaway was in contact with the contractor as a way to deal with certain issues and even praised him for his forward thinking before it became a problem. In addition, Hickaway wasn't disciplined or warned afterwards, so the firm couldn't use it as a reason for termi- nation, said the court. In addition, the issues with timesheets and expense reports were common among many Riddell Kurczaba employees and Hickaway shouldn't be singled out, especially since, once again, he was never warned or disci- plined before he was terminated — nor were his expenses ever rejected, said the court. As for following through with clients, the firm only made vague allegations and didn't show specific instances where this hap- pened — again raising the issue that Hicka- way wasn't warned of problems in this area. Since Riddell Kurczaba was unable to prove just cause, the court found it could only dis- miss him without cause, as it initially indicat- ed, due to a lack of work. But if lack of work was the reason for dismissal, the firm had to provide reasonable notice, said the court. e court noted that Hickaway had only three-and-one-half years of service with Rid- dell Kurczaba but his position held a lot of responsibility, generated significant income for the firm from his work and he was highly qualified with a high salary and bonus. As a result, the court found Hickaway was entitled to seven months' notice of termination. Riddell Kurczaba was ordered to pay Hickaway $49,000 — about seven months' salary — plus more than $5,600 in overtime, more than $2,600 for his quarterly bonus and compensation for benefits and expens- es. Minus the two weeks' salary the firm had paid Hickaway upon his termination, it was on the hook for a total of $57,177.92. Hickaway also claimed bad-faith dam- ages of $10,000 related to the company car transfer and the owner reporting it as stolen, but the court chalked this up to mis- communication and confusion between them. Although it wasn't appropriate for the owner to report the car as stolen, it was also inappropriate for Hickaway to not re- spond to the purchase offer or follow up on the revised ROE, said the court. For more information see: • Hickaway v. Riddell Kurczaba Architec- ture Engineering Interior Design Ltd., 2019 ABQB 646 (Alta. Q.B.). Canadian Employment Law Today | 3 Cases and Trends Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as work refusals, employees who quit and change their mind, and termination agreements. You can view the blog at www.employmentlawtoday.com.

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