Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends 6 | September 30, 2015 Cases and Trends Jan. 1, 2011 for a 12-month "adjustment pe- riod." After this period, if both Kong and the VCBC determined he was suitable, the posi- tion would become permanent. In addition, the VCBC offered to "try every effort to assist you to settle in Vancouver." e VCBC had a staff handbook that in- cluded a "covenant contract" for pastoral staff that reiterated the one-year period to determine "mutual suitability." is contract provided for an automatic continuation of employment following this one-year period unless either the church or staff member ter- minated the employment. e one-year period elapsed without any problems and Reverend Kong became the permanent senior pastor of the church. Tensions between pastor and others in church leadership By late 2012, however, tensions arose between Reverend Kong and the VCBC's two associ- ate pastors over managerial and communica- tions issues. e VCBC's personnel commit- tee met with the deacons and they decided to form a small group consisting of two mem- bers from each to meet with each of the asso- ciate pastors and Reverend Kong. When the small group met with Reverend Kong, it told him the personnel committee was consider- ing performance appraisals for him and the associate pastors in order to provide feedback to all staff. Reverend Kong felt he shouldn't be included in such appraisals. e personnel committee met on Dec. 20, 2012, and agreed to institute performance ap- praisals for the pastors, including Reverend Kong. Concerns were discussed that Rever- end Kong had "problems with integrity, hon- esty, and character traits." is also led to a reconciliation meeting on Jan. 12, 2013, that included Kong, the associate pastors, some deacons, and certain members of the VCBC personnel committee. It was decided that the personnel com- mittee would establish a monitoring system where each pastor would be talked to regu- larly over three months to see if the recon- ciliation was working. It was also determined that each of the pastors needed to continue to work on reconciliation and observations of their progress would be placed in the confi- dential file of each. Reverend Kong took exception to the mon- itoring system and refused to participate in it or any further meetings. He also disputed the personnel committee's authority to dispense discipline or any other measures regarding his job, accusing them of "false accusations and bullying." On May 15, 2013, the two associate pas- tors resigned, causing much concern within the VCBC membership. Reverend Kong sent a letter expressing concerns over how things had been handled, which was shared with the full membership. As a result, a "leaders group" was established to review Reverend Kong's suitability to be the VCBC's senior pastor. On June 11, the leaders group met with the personnel committee and deacons to evalu- ate Reverend Kong. ey reviewed criteria such as character, competency, compatibility, leadership, communication, and relationship, and concluded he was "absolutely not suitable to continue to be the senior pastor." e next day, Reverend Kong was told of the decision and that he would be given an opportunity to resign if he wished. e reverend said he would give his answer on June 14. However, instead of giving an answer, Rev- erend Kong provided a doctor's note stating he would be "unable to work for the next three weeks due to medical illness." e church leaders offered to meet with him on July 9 – after the end of the three-week medical leave -- to consider any issues he wanted to raise in advance of the full membership meeting on July 14. On July 4, Reverend Kong provided an- other doctor's note that said his sick leave should extend for another three months. e church leaders decided to continue with the full membership meeting anyway and invited Reverend Kong to submit a written statement on his behalf. Reverend Kong did not do so, and the full membership overwhelmingly voted to terminate his employment at the end of his sick leave on Oct. 4. e dismissal was without cause, though some indicated it was because he was not "a good shepherd" for the congregation. Reverend Kong was provided with six months' severance pay. Reverend Kong filed a human rights com- plaint, citing discrimination in employment on the basis of age and mental disability, then sued for wrongful dismissal. e court found the position of senior pas- tor "is of a special character" that "is a unique type of employment" requiring him to con- duct himself in an exemplary manner at all times and leading and managing the church. However, there was no expectation it could be long-term employment – as argued by Rever- end Kong – because it was contemplated that the employment could end after 12 months, though after the suitability period ended there could be a reasonable expectation of permanence, said the court. e court also noted that though Reverend Kong was older, age was often seen as an ad- vantage for church leaders and he intended to serve as pastor for as long as he was able. ough Reverend Kong was only em- ployed by the VCBC for less than two years, the length of the adjustment period showed that "potential difficulty associated with be- ing found suitable and securing a similar se- nior pastor position," said the court, particu- larly since such a position was often filled by word of mouth or recruitment. As a result, the controversy around Reverend Kong and the hints that he didn't do his job well nega- tively affected his chances for finding similar employment. Since the VCBC felt 12 months was neces- sary for an adjustment period – essentially a probationary period – the court found 12 months should also be an appropriate period of notice of termination. In addition, the court found the VCBC circulated "unproven allega- tions attacking the social and spiritual worth of Reverend Kong to the VCBC membership" because he had disagreements with the asso- ciate pastors and contested the "ad hoc" com- mittees the VCBC formed to evaluate his per- formance – which were not provided for in any of the VCBC's by-laws and guidelines. As a result, the VCBC was "unduly insensitive" in the manner of Reverend Kong's dismissal. e VCBC was ordered to pay Reverend Kong $54,520 – 12 months' pay in lieu of no- tice – plus $30,000 in aggravated damages for the manner of his dismissal. e court denied Reverend Kong's demand for punitive dam- ages because "while VCBC's actions were un- duly sensitive, they were not 'malicious and outrageous.'" For more information see: • Kong v. Vancouver Chinese Baptist Church, 2015 CarswellBC 2150 (B.C. S.C.). « from B.C. CHURCH on page 1 Pastor resisted performance evaluation Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as family status accommodation, workplace violence, wrongful dismissal, and cutting staff. You can view the blog at www.employmentlawtoday.com.

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