Employer ordered to pay more than $70,000 for exaggerating misconduct of foreign worker who was just trying to do her job
A fishy business
Employers have an obligation to treat employees with good faith and fair dealing, both when considering discipline and if they have to dismiss her. This obligation can be even more stringent if the employee is working in Canada on a work permit that significantly restricts her options of finding other work.
A Canadian operation of a Japanese seafood company ran afoul of Canadian employment law when it accused a Japanese employee of dishonesty and insubordination when, in fact, the employee was trying to do her job properly. Because of the employee’s vulnerabilty and the employer’s bad faith in kicking her to the curb, the employer was responsible for paying punitive damages on top of pay in lieu of notice.
Maki Nishina moved from her native Japan to work at her employer’s North American operations, hoping to move up the company’s ladder in a successful career overseas. However, things came to a screeching halt after her employer accused her of insubordination and breach of trust, accusations which the British Columbia Supreme Court ultimately ruled were unfounded.
The 43-year-old worked for Azuma Foods, a producer of ready-to-eat frozen seafoods based in Japan. The company had an operation in California and opened a seafood processing plant in Richmond, B.C., in 2005. Nishina moved to California in 2001 to work at Azuma’s offices there as an accounting assistant.
Nishina transferred to Richmond on Aug. 13, 2005, armed with a work permit that authorized her to work only for Azuma as a quality control supervisor in Richmond. In July 2006 she signed an acknowledgement saying she received the employee handbook after a manager asked her to. The handbook outlined standards of conduct, such as prohibited behaviour including insubordination and committing fraudulent acts.
Quality control began as part of the plant’s production department, but Azuma planned to eventually make it a separate department. As such, in June 2007 it hired a new employee to be the supervisor. Nishina’s job title was changed to quality control associate. Her duties remained essentially the same but she lost a $250 position fee the company paid her as a supervisor.
Argument over production schedule
On July 5, 2007, Nishina saw a new product was on the production schedule and asked the production manager to remove it because it hadn’t been approved by regulators yet. The production manager refused and they began to argue. Their argument became loud and another employee in the open-concept office had to ask them to lower their voices twice.
The administrative manager reported the incident to Azuma’s vice-president without speaking to Nishina about it. The next morning, the production manager apologized at a staff meeting but Nishina did not, since she felt it was he who had started the argument and she had already apologized to the co-worker who had asked them to quiet down. However, Azuma followed traditional Japanese values, which stressed the importance of apologies to interpersonal relationships and harmony. As a result, it gave Nishina a written warning for causing a disruption in the workplace.
Bad timing for meeting
A month later, on Aug. 9, Nishina conducted an internal audit of Azuma’s quality management program, as required under federal regulations. She chose that day because the company received a shipment of fresh salmon fillets for processing and she had only short notice of when they arrived.
Nishina had been asked to attend a meeting with the vice-president that morning, but she explained she couldn’t because of the audit. She was reminded again of the meeting and told to be there, but she continued with the audit. The vice-president came down to the plant to tell Nishina he wanted to meet and she replied she could meet with him after the audit. The vice-president said he was busy and left. Later that afternoon he gave her a written warning for insubordination for refusing to meet with him that cautioned her “not to engage in this type of behaviour again.”
Company data sent to personal email
Nishina often worked from home after hours because she had been warned about working too many overtime hours. Therefore, she often emailed data from work to her three personal email addresses so she could access it at home. On Oct. 11, 2007, she emailed product information to her personal addresses. One address had a typographical error, so it bounced back. The bounce-back went to the department manager, who reported internal email being sent outside the company.
At a meeting to discuss Azuma’s assistance in helping Nishina apply for permanent resident status, the vice-president asked her about the external email. He told her she put suspicion on herself and she should have obtained company approval before she sent the email. Nishina didn’t try to explain as she felt whatever she said “will be twisted” into what the employer wanted to believe. The vice-president restricted her computer access, gave her a written warning and told her to report to the packing section after her vacation, which was about to start.
After the meeting, Nishina returned to the quality control department and told the supervisor she was moving to the packing section. She gathered up her belongings as well as documents she printed from the Internet on government regulations from a filing cabinet. She deleted her personal computer file and left all completed documents in a public file.
After discovering she had taken documents with her when she left the office, Azuma decided she was in breach of her duty of confidentiality and terminated her for “unauthorized removal of confidential company documents and property.” It emailed a copy of her termination letter to her personal addresses with the intention of finding out if they truly belonged to Nishina.
Nishina sued for wrongful dismissal, including damages for bad faith or mental distress and punitive damages for breach of fiduciary duty.
Employer “exaggerated” reasons for dismissal: Court
The court found Nishina’s conduct did not justify summary dismissal. In her argument with the production manager, raising her voice was an error in judgment but she had reason to be upset, said the court. The argument and her failure to apologize was tied to her attempt to carry out her duties by ensuring compliance with government regulations. It was not a fundamental breach of the employment contract, found the court.
The court also found Nishina did not refuse to meet with the vice-president but only needed to postpone it because she was performing an important aspect of her job. She was prepared to meet with him at a more convenient time but was issued a warning instead.
Though sending an email to three different personal addresses was “odd,” the court found they were all her own addresses and she did so in order to perform legitimate work. This did not violate the employment contract, said the court.
Finally, the court found Azuma wasn’t negatively affected by Nishina’s removal of documents from the office. All necessary files were left intact and the materials she took were from public websites that could be easily obtained. Deleting her files or taking the paperwork were not just cause for dismissal, said the court.
Since Nishina had no employment prospects because of her work permit restrictions and had worked for Azuma for more than six years, the court found she was entitled to 12 months salary, or $52,148, in lieu of notice.
The court also found Azuma didn’t ask her about her version in each case of misconduct and drew “exaggerated conclusions” about her emails and treatment of company documents. The company also knew she was especially vulnerable because of her status as a foreign worker and its conduct amounted to bad faith. Azuma was ordered to pay $20,000 in punitive damages for its bad-faith conduct in firing Nishina.
“Azuma Foods was entitled to investigate the allegations of misconduct it harboured against Ms. Nishina, but what it was not entitled to do was to simply assume she was wrong and then assert it had grounds for dismissal for cause,” said the court. “Azuma’s response and sanction to the instances of alleged misconduct was out of any reasonable, objective sense of proportion.”
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