Employer terminated courier driver without cause 'to spare his feelings'
Terminating an employee without cause just to save hurt feelings may not be the best way to go when the employer actually has reasons for the termination, according to a Vancouver-based employment lawyer.
“Employers will say, ‘We terminated the employee without cause because we didn't want to hurt their feelings’ and then if that employee comes back and wants more notice, the employer has to make out for-cause arguments that, if they had just been clear about from the beginning, then maybe there would have been less chance for the employee to come back,” says Jessica Gibson, an associate at Ascent Employment Law in Vancouver.
“Employers don't have to give reasons for termination without cause, but if you're going to give reasons, I think it would depend on the context of whether you're going to provide a detailed account,” she says. “But not providing any sort of reasoning for cause would probably be a mistake, because otherwise the employee is going to come back and say, ‘The termination of my employment was wrongful.’”
Gibson’s comments come following a decision by the British Columbia Civil Resolution Tribunal that awarded a worker three weeks’ pay as wrongful dismissal damages after he was fired after one shift of work.
Fired after one shift
Nemesis Coffee Holdings operates coffee shops in Vancouver. In December 2021, Nemesis hired the 32-year-old worker to be a courier driver with no formal written employment contract.
The worker’s first day of work was Dec. 13 with his next shift scheduled for three days later. However, on Dec. 15, Nemesis called the worker and terminated his employment without cause. The worker filed a claim for wrongful dismissal claiming four weeks’ pay as severance or wrongful dismissal damages.
Nemesis argued that it wasn’t required to provide notice of termination, as the worker was under a probationary period. It also said that, although the termination was without cause, it actually fired him because he was a poor driver and wasn’t compatible with the courier driver position. The company claimed that it terminated the worker without cause in order to “spare his feelings.”
The worker denied that he was on a probationary period, saying that Nemesis never mentioned it and the job advertisement didn’t include any reference to one.
The tribunal noted that under the BC Employment Standards Act (ESA), employees were only entitled to compensation for length of service after three months of work if terminated for just cause. However, the worker wasn’t seeking statutory entitlements but rather common law notice, which has no minimum service requirement.
The tribunal agreed with the worker that there was no probationary period. The evidence showed that neither the job advertisement nor the communication between the worker and Nemesis referred to a probationary period and there was no written employment contract including it. Since probation is not automatic and must be outlined to the worker, there was no probationary period applicable in this case, said the tribunal.
More than one month’s notice was appropriate for a wrongfully dismissed worker with 16 months of service, according to a federal adjudicator.
No notification of probationary period
If Nemesis wanted a probationary period, it should have had a written employment contract including one – or at least verbally informed the worker that it intended to have one, says Gibson.
“Even if it had been communicated to the employee through email, that would have at least shown that the expectations were communicated to the employee ahead of time so that he knew,” she says. “The strongest way to have done that would have been to have had an employment agreement in place that included a probationary period clause but, unfortunately for the employer, there was no communication ahead of time and there was no employment contract, so it could not rely on [a probation].”
In addition, since Nemesis alleged just cause, the onus was on the company to provide proof, said the tribunal, and it had been established in the jurisprudence that “just cause is conduct that is seriously incompatible with the employee’s duties, goes to the root of the employment contract and fundamentally strikes at the employment relationship.”
For incompetence to amount to just cause, it would have to be “serious or gross” and the employee would have to be aware of the employer’s standards of performance. In addition, the employee would have to have been clearly warned that dismissal would result if the standards weren’t met, the tribunal said.
The tribunal found that Nemesis provided no evidence that the worker’s driving was poor enough to amount to just cause for termination and didn’t express any concern to the worker about his driving during his one shift. Since the worker denied that his driving was that bad, the tribunal found that Nemesis failed to prove just cause for termination, said the tribunal.
A B.C. worker who was induced to leave his old job was awarded six months’ pay for wrongful dismissal after six months of service.
Set out expectations
Gibson notes that a written employment contract could also have helped with the employer’s just cause allegation.
“If the probation period had been communicated to the employee ahead of time, and… they could have put in the employment contract, ‘If we find within the first three months of your employment that you're not suited or don't have the skills that we require, then we reserve the right to terminate your employment without notice or payment in lieu,’” says Gibson. “It would have been difficult for the employee to have overcome that.”
“It's interesting that just a few preliminary words and a piece of paper can sometimes make a world of difference for the employer and the employee in [a case like this],” she adds.
The tribunal noted that the worker was relatively young and his courier driver position was a relatively low-level one. The evidence was that the worker found alternate employment about one month after his termination, so similar employment was reasonably available, said the tribunal.
An Ontario employer’s just-cause standard for no pay breached the statutory standard and wiped out a termination provision.
Three weeks’ notice
As for the worker’s very brief, one-day period of service, the tribunal noted that the BC Court of Appeal had found that a nine-month employee was entitled to notice of two to three months, adjusted for other factors. The tribunal determined that three weeks’ notice was appropriate in this case.
Nemesis was ordered to pay the worker three weeks’ pay in lieu of notice, totalling $1,800.
In cases with very short-term employees, the period of employment may be given less emphasis in the context of other factors in determining the notice entitlement, says Gibson.
“Typically, what is looked at first and foremost in the Bardal factors is the length of employment, and in this case, working one day and getting three weeks was heavily based on the fact that this person had been out of work for over a month,” she says. “I think that, at least in BC, there is some broader consideration given to employees who, for whatever reason, end up working for a very short term within their employment.”
Having just cause for dismissal doesn’t exempt an employer from paying statutory minimums to a fired employee, according to an employment lawyer.
Employment contract can address issues
Ultimately, an employment contract can help set out both a probationary period and expectations that could avoid the problems faced by Nemesis in this case, says Gibson.
“If the expectations were clearly made in a concise document from the offset, that included a probation period, then I think this issue would have been completely moot,” she says.
The beginning of the employment relationship is also a good time to set all of this up.
“The beginning is the so-called honeymoon phase when everything is positive and exciting – the employee’s starting a new job and the company's hiring a new candidate – so just set out the terms and the expectations over the employee’s employment,” says Gibson. “It's the best time to do it, because going forward when there are conflicts and misunderstandings, those will be more difficult to deal with after the fact.”
“Whereas if you have an agreement in place, the agreement can take care of and reduce the instances of conflict, reduce misunderstanding, and also reduce the employer's potential liability – it's really a win-win.”
See Tessema v. Nemesis Coffee Holdings Inc., 2022 BCCRT 1113.
