Forestry worker was wrongfully dismissed but she waived entitlement to damages by signing up for government funding
Waving goodbye and waiving entitlement
Employers have to be careful in handling incidents of harassment and workplace violence. If they don’t take the proper steps in dealing with the situation and the victimized employee doesn’t feel comfortable at work, there could be some legal trouble. Also, the employer also has to take into consideration when layoffs or reassignments are in play that could be perceived as a reprisal for the complaint.
However, if employees are pursuing a wrongful or constructive dismissal suit, they’re not helping their quest for damages if they sign an agreement waiving their right to such damages, as one British Columbia employee did in order to get government funding.
A British Columbia forestry worker was wrongfully dismissed but gave up her right to sue by accepting transition funding from the provincial government, the B.C. Provincial Court has ruled.
Lois Wood worked as a log scaler for Pattom Services, a company that provided scaling services for forestry companies in various locations in British Columbia. Hired in 1992, Wood weighed and scaled logs trucked to her site before the logs were taken to a saw or pulp mill. She also reported her scaling data to the Ministry of Forests so it could assess timber harvest volumes in the region.
Wood had no written employment contract, but there was a fairly regular pattern over the course of her employment that sometimes Pattom would lay off some employees when work was less and call them back to work when things picked up again. Employees who were laid off didn’t receive severance pay, but rather received a “lay off slip” that allowed them to collect employment insurance. Wood and many other employees would work at different sites in the region, depending on where the need was. The company generally assigned employees to sites that had proximity to where they lived, as well as seniority. When they were recalled after a layoff, it was usually to a scaling site where they had previously worked.
Assaulted at work
On Sept. 8, 2006, Wood was working at a scaling site near her home in Edgewood, B.C. While she was in her scale shack, the driver of a logging truck came into the shack. Wood claimed her head was turned, and the truck driver slapped her on the face and side of her head. Wood reported that she was slapped so hard, she briefly lost conscious. The truck driver denied he slapped her, admitting only to tapping her on the shoulder.
Wood reported the incident to a co-worker and continued working for the rest of the day, which was a Friday. When she arrived at work the following Monday, she was surprised to see the same truck driver at the worksite at her scale. Wood asked a co-worker and another trucker to stand with her, but they both declined, not wanting to get involved. Wood then called the police and reported the assault before going home. She felt Pattom didn’t care about what happened to her and took some time off to recover. She saw a doctor, who told her to take two weeks of stress leave.
On Sept. 18, Wood filled out a workplace injury report and compensation claim for WorksafeBC, the province’s workers’ compensation body. She also complained later that Pattom’s only response to the assault was to remove her from the worksite.
WorksafeBC accepted Wood’s claim and Pattom — faced with increased workers’ compensation costs — applied for a review of the decision, since the truck driver who assaulted Wood wasn’t a Pattom employee. The company also claimed it would have kept the truck driver away from Wood had she requested it. However, the review board upheld the claim, finding the assault came within the context of Wood’s employment and she suffered both physical injuries to her head as well as acute stress disorder and post traumatic stress disorder from the assault.
Wood returned to work late in 2006 to three scaling sites, though none were the one where she had been assaulted. Though only one site wasn’t close to her home, Wood felt the reassignment was retaliation for making the workers’ compensation claim. In February 2007, she asked to return to the original scaling site, but Pattom told her she would need authorization from WorkSafeBC because the truck driver who assaulted her would also be there.
Wood eventually returned to the original scaling site in May 2007, but demanded a segregation between scalers and logging truck drivers. She was relocated to another site far from her home in October, and was laid off shortly thereafter.
Through late 2007 and 2008, some work was available at various scaling sites, but other scalers were recalled, including one who was more junior to Wood. In December 2007, Pattom called Wood about some work, but couldn’t reach her. A message was left on her answering machine but the work went to someone else.
Applied for employment transition funding
In June 2008, Wood applied to B.C.’s community development trust (CDT), a program funded by the provincial government. The CDT was targeted at forestry workers who were facing unemployment due to a decline in the industry and designed to transition workers to non-forestry jobs or retirement. Applicants to the program had to voluntarily resign from their employment, be on indefinite layoff and not received any severance. Wood, who was above the minimum age of 55 to be eligible, asked Pattom to assist with her application.
In July, Wood was approved for $60,000 in CDT funding. As part of the funding agreement, she acknowledged that the money constituted “final satisfaction of any claims, statutory or otherwise, that may arise out of my employment and the termination of employment,” that she could not be re-employed by the same company for 18 months, and she relinquished any rights for “preferential hiring” by her previous employer.
In October 2008, Wood’s application to the CDT was accepted. However, she wrote to Pattom to clarify that her request for CDT assistance in June was not a resignation and work had come up since then that had not been offered to her. She filed a claim for wrongful dismissal in a small claims action, seeking $25,000 in damages – the maximum allowed for small claims. Wood claimed that Pattom’s failure to call her back to work when there was work available was wrongful dismissal, and recalling less senior employees was a change to her employment contract.
The court found there were some instances where Pattom “could and probably should” have offered Wood work at certain scale sites that went to other employees, but the company’s work assignment policy was somewhat vague and it did not breach Wood’s contract of employment by not doing so. The court also noted that Pattom did make an effort to offer Wood work in December 2007, but was unable to connect with her. However, the court also found that in January 2008, there was work at a site that she could have travelled to that was offered to a junior employee first. This was a breach of the employment contract and constituted wrongful dismissal, said the court.
However, this was not a simple case of wrongful dismissal warranting damages. Wood accepted CDT funding following her dismissal, which involved her waiving any claims arising out of termination of employment, including wrongful dismissal damages.
The court pointed out that the purpose of CDT funding was to assist senior forestry workers transition to other employment or retirement and to make room for younger workers during a period of significant job loss in the industry. Allowing someone who is getting the funding to pursue a wrongful dismissal action would imply entitlement to a notice period, which the funding cancels out, said the court.
“To allow Ms. Wood to bring this action for wrongful dismissal after she entered into the CDT agreement in which she expressly gave up any right to do so would be a retrograde step,” said the court.
The court found the CDT agreement was written in clear and plain language and there was no reason why Wood shouldn’t understand that she waived her right to any employment-related claims in exchange for the CDT funding. It dismissed Wood’s claim.
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