Chen v. Sable Fish Canada Inc., 2010 BCSC 444, deals with the matter of one unhappy employee that got himself fired for airing the company’s dirty laundry to no less than the shareholders. The case makes clear that a degree of criticism of management is acceptable but when that criticism goe beyond neutral with an intent to damage the employer’s reputation, cause, as it was in this case, is established.
Management countered with a defamation action. The employee’s statements were protected by a qualified privilege due to the employee’s comments concerning the management of the company’s affairs and the financial health of the company.
A sometimes thorny issue (aren’t they all all?) is whether the dismissed individual is an employee or an independent contractor. The issue has been recently adressed in McKee v. Reid’s Heritage Homes Ltd. , 2009 ONCA 916 (CanLII) (Ontario) and in Smith v. Centra Windows Ltd. , 2009 BCSC 606.
In short, the more the individual looks like an employee the more they will be treated as an employee for the purpose of a wrongful dismissal analysis. The Court will look at both the contractual terms and how those terms are actually exercised in the specific instance. Even where the contract calls the individual an independent contractor the court will treat that individual as an employee if the relationship looks like a traditional employment scenario.
At the end of the day, and in the absence of a properly written contractual notice period, common law notice reasonable notice periods may apply.
Palmer v. Clemco Industries Inc., 2010 BCSC 230 deals with the dismissal of two older, senior management level employees.
Employee 1: 60 years old, 14 year employee, service manager for a restaurant grease trap bio-remediator. 15 months reasonable notice.
Employee 2: Similar age and responsibility as an office manager. 11 month notice.
Chapple v. Umberto Management Ltd. , 2009 BCCA 571, deals with the employment dismissal of a 38 year old, 13.5 year employed restaurant manager at one of Umberto’s Whistler locations. Including gratuities and tips her income was roughly $120,000.00 per year. The case is worth a read because it deals with a situation in which the employee’s income level is put into issue and describes some of the evidence that was considered to sort out the gratuitiy and tip components.
The BCCA upheld a 15 month reasonable notice award.
The doctrine of contract frustration deals with situations where a party cannot meet their obligations under a contract due to some non-culpable event. In the case of employment contracts the situation often arises where an employee becomes ill or disabled to the extent that they can’t perform their job anymore or for an extended period of time. See Wightman Estate v. 2774046 Canada Inc., 2006 BCCA 424, in which the application of the doctrine of frustration is determined on the basis of the language of the contract. In this particular case the contract contemplated frustration on the facts at hand.