Canadian Employment Law Today

May 1, 2013

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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CELT May 1 2013:celt 467.qxd 13-04-29 10:43 AM Page 1 CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS MAY 1, 2013 Escorted ex-employee escorts employer to court Employee claimed employer acted in bad faith in dismissal following unrelated investigation offer nor the circumstances of his dismissal, in which he alleged Honda acted IT IS the practice of many employers to in bad faith. In the context of the major escort a dismissed employee out of the investigation that had taken place, workplace. Particularly when dismissal Brownson claimed: is for cause, it can be prudent to ensure • The decision to terminate him meant the employee leaves under the he had in fact been dismissed for cause employer's watchful eye. However, some- •Honda's selecting him to be terminated times this common practice can result in carried a stigma a claim the employer acted in bad faith. • Being escorted out the door implied he This was the issue in a summary had committed wrongdoing and this was judgment motion before the implicit message sent the Ontario Superior Court to his colleagues. WRONGFUL of Justice in Brownson v. Brownson claimed to DISMISSAL Honda of Canada Mfg. The have been humiliated, case has yet to be decided produced evidence he had at trial, but the court's preliminary deci- suffered mental distress, and sought sion is a timely reminder that in this monetary damages as a result. post-Wallace era employees are more Honda brought a motion for sumlikely to file a complaint about — and mary judgment asking the court to discourts to evaluate — not only why, but miss Brownson's claim on the basis it also how a dismissal is carried out. raised no reasonable cause of action. Prior to Gerry Brownson's dismissal, Honda argued, as a "without cause terhis employer, Honda Canada, conducted mination," it had the legal right to termian investigation into workplace miscon- nate Brownson at any time with duct. Brownson was one of 23 employees reasonable notice. As such, was no legal interviewed and Honda learned of cer- basis on which Brownson could ask a tain issues about Brownson that were court to consider Honda's underlying not related to the investigation. reasons for the termination, or to examHonda decided to terminate Brown- ine its termination procedures in detail. son's employment. Significantly, Honda Unfortunately for Honda, the judge did not attempt to use the results of the hearing the motion found Honda had not investigation against Brownson to claim satisfied the established legal test for just cause. Rather, in the letter of termina- granting summary judgment, which tion, no explanation was given and Brown- required Honda to prove there was no son was offered eight months' pay. He was genuine issue requiring a trial. also escorted off the Honda premises. "The juxtaposition of the termination with a contemporaneous investigation of Dismissed employee felt humiliated misconduct colours the ordinary proceBrownson was not satisfied with the | BY TOM GORSKY | Continued on page 8 In T h is I s s u e ASK AN EXPERT: Resigning employee changed mind • Demotion instead of dismissal CASES AND TRENDS: Paramedic let go for meeting with young patients CASE IN POINT: Field hockey coach denied reinstatement during trial NEWS: Border officer overestimated radiation threat from Japan YOU MAKE THE CALL: Angry trucker unloads on workers 2 3 4 7 12 Worker still employee despite being labelled a contractor: Adjudicator A BRITISH COLUMBIA worker was in an employment relationship and entitled to reasonable notice of termination, despite the existence of a contract labelling him an independent contractor, an adjudicator has ruled. Matthew Rennie was a helicopter maintenance engineer for VIH Helicopters, an aviation service provider based in North Saanich, B.C. Rennie was hired in 1993 as a sole proprietorship under the name Matt Rennie Engineering. Three years later, VIH told Rennie he must incorporate in order to remain working for the company. VIH told him the same thing in 1998, with the stipulation VIH would make payments to his new company through invoices. Rennie's father incorporated a new company under the name Blue Stone Continued on page 11

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