Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends 6 | October 28, 2015 Cases and Trends « from PILOT on page 1 Both parties agreed to training cost estimate conducted at three months, six months, one year, and annually after that. Langford's employment agreement stipu- lated that the maximum notice she would receive in the event of termination without cause would be that required by the Cana- da Labour Code and not the common law. She was also required to provide a two-year training bond to cover the cost of training on specific aircraft types. Carson Air said it would follow up on the current rates for the training bond. Before she signed the employment agree- ment, Langford requested a new copy of the contract with the amount of the training bond included. Carson Air confirmed it was a two-year bond and nothing would be pay- able unless she voluntarily resigned within that two-year period. Carson Air sent another agreement with a salary increase but still no training bond amount. Langford signed the agreement, but acknowledged she expected to sign a separate training bond agreement and in- dicated she wasn't comfortable without an approximate figure for the bond included. Training expenses estimated On Sept. 21, Carson Air sent Langford a training bond agreement. e agree- ment indicated the cost of training would be $25,000 over 24 months and Langford would be responsible for a monthly pay- ment of $1,041.67 over that time. However, Carson Air would waive the monthly pay- ments as long as Langford remained an em- ployee or was laid off. If Langford's employ- ment was terminated before the 24 months elapsed, Langford would be responsible for the balance owing in full. If Langford began training but failed to complete it, the full amount of the bond would be due within 14 days. e agreement also authorized Car- son Air to deduct any money owing from Langford's pay. Langford began her training in Vancou- ver and was later sent to Dallas for simula- tor work. However, once she was in Dallas, Carson Air learned she had no valid Cana- dian medical examination. She had a valid U.S. medical examination, but was unable to arrange for one accepted by Canadian authorities. As a result, she was unable to complete her pilot proficiency check (PPC). Langford obtained her Canadian medi- cal examination and went back to complete her PPC training in November. She was successful and started flying for Carson Air on Nov. 15, 2012, at which point she began receiving her salary. On her initial flight, Langford flew with Carson Air's director, who observed her performance. She had some difficulty on the radio due to differ- ences from her European flying experience and language issues. e director was not impressed and told one of the senior pi- lots Langford should only fly with him and another senior pilot. As a result, she was only scheduled to fly with those two pilots. Langford didn't disagree with the schedule as she agreed she hadn't flown much the previous two years. On Dec. 15, Langford was scheduled to fly but brought her dog to the Vancouver base. e dog escaped from its carrier and defecated inside the building. She said she had checked with an engineer who had also brought his dog, though the engineer re- mained at the base. Around the same time, Carson Air discovered Langford was miss- ing a completed examination for an instru- ment that Transport Canada required of pilots to fly commercially. Langford acknowledged she was miss- ing the qualification and Transport Canada was aware she had been flying illegally. She said the airline should have caught it ear- lier to deal with it, but Carson Air felt she shouldn't have applied for the job without proper licensing. On Dec. 20, 2012, Carson Air terminated Langford's employment, telling her she had been unsuccessful in her probation. e airline had issues with her failure to ensure she had proper medical examinations and licensing, poor performance, a lack of dili- gence, and a poor attitude. It also indicated the outstanding amount on her training bond was payable in full and it kept her final paycheque — more than $1,500 — to put to- ward that amount. Langford took the instrument examina- tion on Dec. 20 but failed to pass. She took it again eight days later and passed. How- ever, Carson Air announced to its pilots that Langford had been released from her condi- tional employment and wished her well in the future. Langford filed a suit seeking damages for breach of contract for not paying her during training, harassment, wrongful dismissal, and defamation. She also claimed she signed the training bond agreement under duress and should not be held to it. Carson Air filed a counterclaim for the outstanding amount of the training bond. e court found there was no breach of contract. It discerned no evidence that Lang- ford was treated with anything other than dignity and respect, and Carson Air gave her a second chance when she was lacking the proper medical examination. In addition, until she completed the training, she wasn't qualified to fly their planes and not entitled to be paid her salary until the training was complete — which was Nov. 6. e court also found the training bond agreement was valid and signed by Lang- ford, so Carson Air was entitled to recoup part of the training cost from Langford's fi- nal paycheque. As a result, the court deter- mined Langford was not entitled to claim any lost wages. ough Langford complained of harass- ment because she was only offered a first officer position rather than a captaincy be- cause she was female, and one of the senior pilots yelled at her a few times, the court found Langford was given the position for which she applied. It also found the senior pilot yelled at her "in the heat of challenging circumstances" during flights and not at her specifically. In fact, on at least one occasion the senior pilot apologized and Langford ac- cepted the apology. "e aspects of (Langford's) experience working with (Carson Air) of which she complained were, in my view, situations that she should have tolerated, and did tolerate," said the court. e court also found Langford criticized her supervisor, the chief pilot and the skills of some of her colleagues, in addition to not informing Carson Air of her missing qualifications. Based on the attitude prob- lems, performance issues, and a perceived inability to fit in with Carson Air staff, the company"made a reasonable decision" to terminate her employment, said the court in dismissing the wrongful dismissal claim. Regarding the training bond, the court found Langford was allowed to seek legal ad- vice before signing it and was given time be- fore signing. In addition, there was no pres- sure and the bond was similar to one she had signed before. Both parties had agreed to the estimate of training costs, which turned out to be close to the actual costs. As a result, the court allowed Carson Air's counterclaim and ordered Langford to pay the balance of the bond — $23,408.64. For more information see: • Langford v. Carson Air Ltd., 2015 Car- swellBC 2367 (B.C. S.C.). The pilot acknowledged she was missing the Transport Canada qualification, but said the company should have caught it earlier

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