Canadian Employment Law Today

October 01, 2014

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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GSt #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CustomEr sErviCE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations Website: thomson reuters Canada ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: karen Lorimer Publisher: John hobel (on leave) Managing Editor/Acting Publisher: todd humber Editor: Jeffrey R. Smith E-mail: ©2014 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian How would you handle this case? read the facts and see if the judge agrees YOU MAKE THE CALL 8 personality confl ict and rudeness leads to termination of contract THIs InsTAlmEnT of You Make the Call involves a federal government employ- ee in British Columbia who was fi red for in- subordination. Norman Diablo, 50, is of aboriginal de- scent with a history of drug and alcohol problems. In 1988, he stopped drinking and doing drugs and entered rehab, which in- cluded going back to his roots to seek help from aboriginal elders. His treatment was successful and he hasn't had a drink or taken drugs since. Diablo's treatment caused him to fi nd a new respect for aboriginal culture and, in 1990, he began helping aboriginal off end- ers at B.C. correctional facilities. He helped them reconnect with their culture and seek rehabilitation with the community, similar to what he did. In 2005, the correctional facilities where Diablo worked closed and he signed a six- month contract with the federal govern- ment to provide elder services to aborigi- nal off enders. When the contract expired, a new one was signed to run for one year, from April 1, 2006, to March 31, 2007. e contract had a termination clause that lim- ited the government's liability to "payment for work performed and expenses incurred prior to the giving of notice in the event of termination of the contract." Diablo was also selected to take training for a new program called the aboriginal of- fenders substance abuse program (AOSA), which helped aboriginal off enders who had problems with substance abuse. Diablo worked with off enders in both the AOSA and the general corrections population, as there was no distinction in job duties or a separate contract. A facilitator was hired to work with Diab- lo in the AOSA program. ey started work- ing together in May 2006, but they didn't get along. On one occasion, they were having a session with aboriginal inmates and the fa- cilitator commented that she had diffi culty hearing Diablo, to which Diablo responded that she should move closer. On another oc- casion, he told her to "get a hearing aid." During another session in which the facil- itator was explaining something to inmates, Diablo said "10 minutes" after that much time, then "20 minutes" and "30 minutes" at those time intervals. e facilitator felt Dia- blo was undermining her, though she wasn't sure if the inmates had heard him. Acrimony increased between Diablo and the facilitator and there were incidents where Diablo said, "women sure talk a lot" after she spoke, and Diablo called for a cigarette break in the middle of an exercise before telling the inmates he "saved" them. On Aug. 21, 2006, the facilitator told Diablo she would not work with him again because of his rudeness. She also com- plained to her boss and said the same thing. A resolution circle was held the same day at an elder's home to discuss the issues. Diablo acknowledged that he didn't par- ticipate enough during the AOSA program and "it was possible" that he had counted the time during the facilitator's talk and made the hearing aid comment. It was decided Diablo would not continue in the AOSA program but would remain as an elder at an institution. Diablo didn't have any problems at the institution, but on Sept. 21, 2006, his em- ployment was terminated after he was un- successful in tendering a new contract after the expiry of his existing one. Diablo's boss gave him a letter that stated he had failed to perform his obligations under the contract. Diablo asked why he was being terminat- ed and was told he was hired to be an "elder with programs" and he didn't want to be there anymore or work in that environment. you makE tHE Call Was there just cause for termination of the contract? OR Was the termination wrongful? IF yOU sAID the termination was wrongful, you're right. e B.C. Supreme Court found Diablo had the impression all the issues had been resolved at the resolution circle and he had a fresh start at the new institution. By terminating his contract the following month for the same issues rather than at the resolu- tion circle, the federal government breached the contract, said the court. e court found it was unfair to consider the resolution circle as a notice that Diablo's employment was in danger, because he fol- lowed the terms that were developed in it and continued working under them with no other issues. ere was no indication that the resolutation circle was a warning. It didn't matter that Diablo was no longer working in the AOSA program, as his em- ployment contract was not specifi c to those duties, said the court. With the resolution circle serving its pur- pose and resolving Diablo's issues with the facilitator of the AOSA program and no fur- ther issues in Diablo's placement in a new institution, there was no cause for terminat- ing his contract in September 2006, said the court. e government was ordered to pay Diablo the balance of what he would have earned in the remaining six months of his contract, minus what he earned from work he found in the meantime. e total award was $32,864.39 plus interest. For more information see: • Diablo v. Canada (Attorney General), 2013 CarswellBC 2485 (B.C. S.C.).

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