B.C. employer’s just-cause claim against plumber goes down the drain

Plumber’s previous side jobs had been allowed before being terminated for breach of conflict-of-interest policy

B.C. employer’s just-cause claim against plumber goes down the drain
credit: Andrey_Popov/Shutterstock

A British Columbia plumber whose side jobs had been tacitly condoned by his employer was wrongfully dismissed when the employer fired him for additional side jobs without prior discipline, the B.C. Supreme Court has ruled.

Christopher Booton, 42, was hired as a plumber in October 2012 by Synergy Plumbing and Heating in Burnaby, B.C. He performed plumbing, heating and gas work for customers. At the time, Synergy was co-owned by two brothers — Joe and Dennis Guiotto. Joe bought his brother’s share in the business in 2016 after Dennis could no longer work due to health issues.

When Booton was first hired, he didn’t have a written employment agreement with Synergy. However, in May 2014, the company provided a written offer of employment that stated there would likely “be a vacancy in the current service manager position in the near future.” In the agreement, Synergy said it was offering Booton the position of interim service manager “subject to there being a vacancy in the current service manager position.”

The agreement went on to say that it would give Booton an opportunity to “prove you are worthy” of the job by placing him in the role for at least two months without hiring anyone else. Booton accepted the offer.

Conflict of interest could lead to dismissal

Synergy also had a conflict-of-interest policy that dictated employees could not use company vehicles, tools or materials to perform non-Synergy work; nor could employees perform non-Synergy work for anyone they know or should know does business with Synergy, without authorization. The policy instructed employees who encounter a possible conflict of interest to discuss it with management before proceeding. Anyone found to be in a conflict of interest “may be subject to immediate termination.”

A binder with this and all Synergy policies and procedures was given to all employees. Booton had three of these binders in his office, but he claimed he never looked through them.

While employed with Synergy, Booton often did “side jobs” — work done after hours for someone who wasn’t a customer of the company. In June 2014, he was on vacation from Synergy when he did work for nine days in Dawson Creek, B.C. for a man who had been a customer of Synergy’s two years earlier. However, Synergy wasn’t involved in the 2014 project for which Booton did some work.

The two owners of Synergy were aware of Booton’s side job in June 2014 and were concerned he had worked on his vacation, but there was no discussion of the conflict-of-interest policy or any disciplinary action.

In the summer of 2015, Booton did some more work for the same client at the client’s residence and another property. He was paid in cash and didn’t tell anyone at Synergy about it.

A performance review in August 2016 indicated that some aspects of Booton’s work needed improvement. Booton disagreed and, after a discussion with Joe Guiotto, put a positive spin on things. 

In January 2017, Booton asked Joe Guiotto some questions about Guiotto’s son, who worked as a plumbing technician with Synergy but didn’t always work on jobs the company was doing. Guiotto often assigned work around the office for his son to do, and Booton wasn’t clear on what the son’s job was. Guiotto told Booton it was none of his business.

In April 2017, a Synergy employee who worked on collecting overdue accounts told Guiotto that a particular client who wasn’t paying was having Booton perform side jobs. In addition, the client for whom Booton had done side work in 2014 and 2015 had an overdue account.

Guiotto called the second client to find out why he hadn’t paid off his account, and the client said that he didn’t owe Synergy anything because he had paid Booton $38,000 for work on his residence. Guiotta felt this was “extremely serious” and looked into the client’s files, which revealed that Booton had done work for both clients who hadn’t paid. In addition, Booton had used Synergy’s name to obtain permits for the work, for which he had been paid personally.

Guiotto discussed the matter with Synergy’s general manager of construction and they decided to terminate Booton’s employment. On April 4, they met with Booton and showed him unpaid invoices for the clients in question and told him the one client had said Booton had done $38,000 of side work for him. They informed Booton he had breached the conflict-of-interest policy and gave him a termination letter.

Booton sued for wrongful dismissal — arguing he didn’t breach the conflict-of-interest policy and was fired because Synergy wanted to eliminate the service department and he had asked uncomfortable questions about Guiotto’s son — and defamation — the latter because Guiotto told Synergy’s dispatcher and a group of employees at a meeting that Booton had said that, because the company hadn’t been paid by clients because of Booton’s side jobs, Booton had stolen money from Synergy.

The court found that there was no evidence Synergy was trying to eliminate the service department or the termination was motivated by Booton’s questions about Guiotto’s son, so the issue was whether Booton had breached the policy.

No prior discussion of policy

The court noted that company policies had not been given to or discussed with Booton when he was hired, but Booton had possession of the binder in his office. Regardless of Booton’s knowledge of the policy, it was clear that he performed side jobs in 2014 that Synergy was aware of. Since Booton wasn’t warned or disciplined in 2014, there was no reason for Booton to think he was breaching company policy by performing side jobs, the court said.

“In my view, Synergy and the co-owners of the company condoned (Booton’s) side jobs... in 2014,” said the court in finding Synergy didn’t apply its conflict-of-interest policy consistently. “It would not have been unreasonable for him to believe that the side work that he later did... would also be condoned.”

Since Synergy didn’t warn Booton about any potential policy breach, it wasn’t appropriate to jump to termination when he decided he was in breach later on — particularly since the policy itself only said a conflict of interest “may” be subject to immediate dismissal, not definitely. Before dismissing Booton, Synergy would have to warn him that a future breach would result in immediate dismissal, the court said.

The court found Booton was entitled to 4.5 months’ reasonable notice for dismissal. As for Booton’s claim of defamation, the court found that while Guiotto may have felt Booton’s side jobs took money from the company, his phrasing that Booton had stolen money could have been interpreted by some to mean Booton had directly stolen money. Booton failed to prove any quantifiable damages from the comments, so the court determined only a marginal defamation award was appropriate.

Synergy was ordered to pay $34,275 in wrongful dismissal damages plus $500 for defamation.

For more information see:

•  Booton v. Synergy Plumbing and Heating, 2019 BCSC 276 (B.C. S.C.).

 

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