Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases Disorganized employee not dishonest: Court A BRITISH COLUMBIA employee was not dishonest when he submitted inaccurate expense claims and timecards, the B.C. Su- preme Court has ruled. Robert Johnson, 65, was a manager for Marine Roofing Repair and Maintenance Service in Vancouver with 24 years of ser- vice. Johnson reported to the company's owner until the owner's death in Septem- ber 2011. He then reported to an executive, Gary Godfrey, who was part of a manage- ment committee with the late owner's wife and son. For most of his time at Marine, Johnson was responsible for managing the day-to- day affairs of the company. He hired and fired employees and made most of the de- cisions without much supervisory involve- ment from Godfrey and the management committee. Johnson was on call 24 hours a day, seven days a week and often worked from home. He drove a company truck that was approved for personal use and used his own credit card to pay for gas. Sometimes he reimbursed employees for gas money they spent and claimed the reimbursement as expenses. Shortly after the original owner's death, Godfrey assured Johnson there were no concerns with his performance or his posi- tion with Marine. Johnson's employment came up in discussion at a management committee meeting, but all employees were reviewed at that time. In March 2012, Johnson submitted an ex- pense claim for gas charges. ree months later, Godfrey sent Johnson a memo saying the claim was not being approved because it was considered excessive. Marine preferred employees to use propane — for which it had a tank onsite — for trucks because it cost less. e trucks only needed gasoline to start but Marine felt Johnson was letting employees use too much of it. Godfrey said he would reimburse the expenses — about $1,000 — if Johnson could provide a proper explanation of their business purpose. Johnson was an- noyed but didn't pursue the matter. Marine employees were paid on an hour- ly basis and logged their times manually on time cards, which were coded accord- ing to specific work orders in order to bill customers. Johnson also used a general ad- ministrative code, but the company wanted him to log more time on specific jobs. is created tension between Johnson and God- frey. Johnson often worked from home in the morning before going to job sites, but in August 2011 Godfrey asked him to start coming into the office first thing. Johnson ignored the request and continued to work from home. In July 2012, Johnson went on vacation during the same time as he had in previous years. However, he didn't provide advance notice, which was a new company policy in- stituted that year. When Johnson returned, he had a heated conversation with Godfrey over the issue. After Johnson left, Godfrey checked Johnson's time card from the pre- vious day and saw there were 10.5 hours re- corded on it. Suspicious, Godfrey began tracking John- son's arrival and departure times each day and compared it to his time cards from July 24 to Sept. 21. Discrepancies were found — including two time cards with the same date and different hours and a difference of 90 hours over 64 working days — and Godfrey called a meeting with Johnson and the for- mer owner's son on Oct. 2. Johnson couldn't explain why there were two cards for the same day but said he re- corded his time from the moment he entered the office to when he left. When asked to explain the discrepancies, he said he some- times worked outside of the office, such as at home and on the way to work. Johnson of- fered to "work out a deal" to repay the hours to Marine. Godfrey declined and presented John- son with a termination letter, stating cause for dismissal was "fraudulent expenses" and "fraudulent time sheets." In recognition of Johnson's 24 years with Marine, however, the company offered a severance package of eight weeks' salary in exchange for a release of all claims against it. Johnson declined to sign the release. e court noted that things had become tense between Johnson and Godfrey and the latter had lost trust in the former. If the de- cision to terminate Johnson wasn't made by the meeting, "it was very close to that," said the court. e court noted Johnson wasn't given the time sheet analysis before the meeting or time to respond to it. e court found the discrepancies could be explained by the fact Johnson didn't re- cord site visits on specific work orders, he didn't have access to the office system when working at home, he made some mistakes — he admitted to forgetting he had already submitted a timecard sometimes when he submitted a second one — and he spent part of the period of the analysis doing multiple site visits for evaluations. e court found Godfrey didn't like John- son's work habits and there was tension, but "Johnson's honesty is vindicated at the ex- pense of his organizational abilities." e court also found Marine's system for reimbursing gas expenses was "exceed- ingly informal" and allowing Johnson to reimburse employees and then claiming reimbursement himself was "fraught with possibilities for honest error." Johnson's lack of great concern for the refusal of his $1,000 claim didn't make sense if he was purposely trying to get more money with fraudulent claims, said the court. With no evidence of dishonest conduct in either his timecards or expense claims, the court found there was no cause for dis- missal. Marine was ordered to pay Johnson compensation for 24 months' notice minus earnings he made from new employment — totaling $173,000 — plus $10,000 in aggra- vated damages for bad faith in the manner of his dismissal, due to the false allegations of dishonesty. See Johnson v. Marine Roofing Repair & Maintenance Service (2003) Ltd., 2015 BCSC 472 (B.C. S.C.). WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as attendance management, employment standards, the new Labour Market Impact Assessment, and key developments in employment law. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

• Cover