Canadian HR Reporter

CANADIAN HR REPORTER June 15, 2015 EMPLOYMENT LAW 5 Jeffrey Smith Legal View Labour law research just got faster, easier and more comprehensive. LabourSource™ on WestlawNext® Canada combines the most robust collection of grievance arbitrations with court and board decisions, expert commentary, legislation and collective bargaining-related content – with Canada's most advanced search engine. A single search delivers the content you're looking for, whether it's case law, legislation, commentary, or legal memos. You can then filter your results to get exactly what you need. With LabourSource, you'll always be confident that your research is complete and that you haven't missed anything. Experience the benefits • Prepare winning grievance arbitrations and labour board applications • Successfully negotiate favourable collective agreements • Stay up to date on the latest labour-related decisions, industrial relations and economic news Legal content that is labour focused, not labour intensive Introducing LabourSource™ on WestlawNext® Canada See the LabourSource advantage View a demo at westlawnextcanada.com/laboursource 00224EP-A47770 Charging employees for damage? Just don't A British Columbia worker was construc- tively dismissed when his employer no- tified him, following a few incidents of equipment damage, it would be charging him for the cost of any additional dam- age, the B.C. Supreme Court has ruled. Ralph Rothberger was a heavy equipment operator for Concord Excavating and Contracting in Surrey, B.C., hired in 2001. He primarily worked as an excavator operator and worked seasonally, from early spring to late fall. During the busy season, he of- ten worked more than eight hours per day and 40 hours per week but received no overtime pay. During the off-season, Roth- berger didn't work and relied on employment insurance payments as income. Rothberger was considered a good employee, receiving several pay raises and being called back every spring when work became available. He had no discipline on his file. In the spring and summer of 2012, Rothberger was involved in three incidents while working — two causing damage and equip- ment breakdown and one caus- ing a power arc leading to a power failure at a worksite. In one of the incidents, the excavator's bucket came off and a piece of equipment was lost in a ditch. The incidents also resulted in downtime from temporary shutdowns. On Aug. 31, 2012, Rothberger received a note with his pay slip — written by Concord's book- keeper, who was also the wife of the company principal — that stated: "As Concord has replaced two (2) wedges (due) to operator fault, the charge of any further will be made to you." Rothberger didn't acknowledge the equipment breakdowns and loss were due to his misconduct or failure, so he tried to talk to Con- cord's principal about the note. He approached him at an event about a month later, but the prin- cipal waved him off, telling him to forget about it. e principal later testified he hadn't intended to pursue pay- ment from Rothberger, despite the note. However, Rothberger wasn't told the company didn't intend to obtain payment and he felt his concerns over paying for fu- ture equipment loss were being dismissed. The principal testified Roth- berger approached him again the following week at a safety meeting, but he told Rothberger it wasn't the time or place to dis- cuss it. Rothberger claimed he had no memory of having that conversation. Rothberger investigated and discovered the B.C. Employment Standards Act prohibited employ- ers from demanding payment from employees without consent. As a result, he left copies of the relevant sections of the act in his employer's mailbox on Oct. 1. The bookkeeper responded with an angry email outlining the incidents and stating, "Your lack of safety checks and lack of safety requirements are noted and filed should I need them for any future legal action you may want to pursue." Last straw for employee After receiving the email, Roth- berger decided he could no lon- ger work for Concord and, on Oct. 2, he told the supervisor at his worksite he was quitting and walked off the job. e supervisor relayed the information to Con- cord's principal. Rothberger sued for construc- tive dismissal, claiming the note on his payslip amounted to a change to his terms of employ- ment and the Oct. 1 email was an implied threat. Together, these constituted constructive dismiss- al, said Rothberger. Rothberger also filed a claim for unpaid overtime and was awarded back pay for the six months prior to the day he stopped working for Concord. Six months was the maximum period of time for which unpaid overtime could be awarded under the Employment Standards Act. Email 'wholly unresponsive,' says court After Rothberger received the note, he made attempts to discuss the matter but was brushed off, found the court. e note clearly stated Concord was going to de- duct future costs from Rothberg- er's paycheque, which was con- trary to the act, and when Roth- berger pointed out the illegality of it, he was answered with an email that was threatening and pro- vocative, not to mention "wholly unresponsive to (Rothberger's) le- gitimate effort to have (Concord) resile from its stated intention to charge him with respect to future incidents," said the court. e note with his paycheque warning of the deduction of an unspecified amount "was a ma- terial change to the employment contract, which entitled (Roth- berger) to receive an hourly wage for hours worked," said the court. In addition, it was contrary to the employment standards act and an infringement of Rothberg- er's rights, since the vagueness of the note gave no indication as to how much the threatened deduc- tions would be. Since Concord's actions con- stituted a change to Rothberger's compensation package — which was at the heart of the employ- ment contract — and amounted to constructive dismissal, the court found Rothberger didn't have to continue working and wait for the deduction policy to take effect. Concord's conduct in how it communicated with Rothberger also breached the "fundamental term of any employment rela- tionship that the employer will treat the employee with civility, decency, respect and dignity," said the court. If Rothberger had not been constructively dismissed, he would have worked full-time un- til the end of the busy season in mid-November 2012 and started again in early January, as in most other years, it found. Rothberger found new employ- ment in early March 2013, so the court found he was entitled to compensation for 12 weeks of lost employment. With vacation pay added, the total damage en- titlement was $15,264. For more information see: •Rothberger v. Concord Excavat- ing & Contracting Ltd., 2015 Car- swellBC 1191 (B.C. S.C.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com.

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