Canadian Employment Law Today

Canadian HR Reporter, 2021 or a third party. The agreement also pro- hibited the disclosure of any information related to "the personal, financial, or other affairs" of customers during the course of his employment, either for his own benefit or to the detriment of the credit union. The employee code of conduct also ad- dressed confidentiality, stipulating that em- ployees could only access the accounts of members or other employees when request- ed by the account holders, and they couldn't discuss or disclose member information to anyone outside of the credit union, unless directed to do so in certain circumstances or authorized to do so by the member. Jones also had a termination clause that allowed for termination of his employment if Bayview "deems such action appropriate" and entitling him only to notice or severance "as may be required under the provisions of the Employment Standards Act." Jones transferred to another branch in De- cember 2016. In February 2019, his manager brought to his attention concerns about his performance, which he followed up with coaching. On Feb. 9, Jones was late to ar- rive for his shift and left early the same day. His manager told him that his conduct was unprofessional and that, if it continued, it could be grounds for dismissal. In April 2019, the manager counselled Jones on negative trends he had seen in audits of new accounts Jones had opened, although he received performance reviews stating that he was a "fully satisfactory" em- ployee. Three months later, Jones transferred to another branch in Kennebecasis Valley, just outside of Saint John. One month later, Jones' new supervi- sor counselled him on multiple incidents where Jones had failed to follow proper procedures. There was an additional coach- ing meeting, but Jones wasn't disciplined or given a warning. Suggested solutions to member On Sept. 13, 2019, Jones met with a credit union member and the member's spouse to discuss relief payments for a loan. Jones ob- served that they seemed to be visibly upset when they entered his office and said they were having financial trouble. Jones accessed the member's account and saw that there were automatic payments that matched the description of the loan payments but no re- cord of him having a loan. Further digging revealed that the payments were going to the account of the member's parents. The member suggested that perhaps the loan was a joint loan with his parents, so Jones looked at the parents' account. He discovered that they had activated a line of credit to help the member's financial situa- tion. According to Jones, he told the mem- ber that he couldn't reveal any information about his parents' account since it wasn't linked to his own profile, but Jones told him about possible solutions that had worked for other members in similar situations, such as personal loans and lines of credit. He recom- mended that the member verify if the pay- ments were correct and then check with his parents to see if he could get relief on the amount being transferred from his account to theirs. Three days later, the supervisor questioned Jones about what he had told the member at the meeting and asked if he had revealed that the member's parents had a line of cred- it. Jones insisted that he had only given the member hypothetical suggestions and de- nied revealing any details about the parents' account. The next day, Bayview's chief operating officer and the supervisor met with Jones in a meeting that was originally supposed to be about a performance improvement pro- gram. However, they were concerned about Jones breaching the privacy of a member at the Sept. 13 meeting. The supervisor claimed that Jones had responded to the question about revealing the line of credit by saying "I did tell them that much," but Jones denied he said that. Ultimately, Bayview decided that the pri- vacy breach had happened and terminated him for cause. However, it provided him with two weeks' salary to help him transi- tion to alternate employment. Jones sued for wrongful dismissal. The court found that while Bayview had some concerns with Jones' performance, it never disciplined him for any performance issues and only coached him from time to time. In addition, Jones' performance re- views were satisfactory and Jones was an ex- perienced professional in the industry. The court also found that it was unrea- sonable to "accept as a fact," without direct evidence, that someone with 12 years' total experience in banking wouldn't understand the importance of confidentiality to clients and should be able to assist a client with- out disclosing confidential information. As a result, the court found Jones' account of the meeting in which he described hypo- thetical solutions to the member's problem without revealing that the member's parents had a line of credit to be consistent with the "preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions." Given Jones' credibility and the plausi- bility of his version of events, the court also found it unlikely that he told the supervisor that he had revealed the line of credit details. Therefore, Bayview did not have just cause to terminate Jones' employment, the court said. Ambiguous termination clause The court also found that the termination clause in Jones' employment contract was unenforceable. The clause granted Bayview the right to terminate Jones "if it deems such action appropriate," but it didn't address consequences of where cause was alleged but ultimately found unwarranted — the cir- cumstances in this case. As a result, the termi- nation clause was "not clear, unambiguous and straightforward, the court said. "It would not have been difficult for [Bay- view] in this instant case to draft a termina- tion provision that leaves no doubt as to the parties' intentions as to the consequences of where cause is alleged but found unwar- ranted," said the court. "In my view, authors of termination provisions should be mind- ful of vulnerable employees who hold un- equal bargaining power with their potential employers in employment contract negotia- tions." The court also found that even if the termi- nation clause was clear, it didn't unequivo- cally rebut the presumption of reasonable notice because the language saying Jones was "not entitled to any notice or termination… except as may be required under the provi- sions of the Employment Standards Act" did not clearly state that Jones was only entitled to the minimum under the act. The court determined that Jones was en- titled to 3.5 months' reasonable notice — equal to $15,181.05 —and denied Jones' claim for additional notice based on the manner of dismissal as there was no evidence to show Jones suffered from mental distress that "goes beyond the normal distress and hurt feelings resulting from dismissal." For more information, see: • Jones v. Bayview Credit Union, 2020 NBQB 243 (N.B. Q.B.). 6 | | April 21, 2021 April 21, 2021 « from NEW BRUNSWICK on page 1 Employee said hypothetical suggestions didn't reveal account details Cases and Trends Cases and Trends The worker insisted that he had only given the member hypothetical suggestions and denied revealing any details about the parents' account.

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