Employer fails to raise performance concerns before dismissal
A British Columbia worker who was fired after three days of work is entitled to three months’ pay in lieu of notice for wrongful dismissal, the B.C. Provincial Court has ruled.
William Dalton, 70, received his B.C. certification as a registered fire protection technician in 2017. At the time, he was employed with a fire protection company that had hired him about six months earlier. Once he received the certification, he was able to fully perform the role that involved inspecting and testing fire protection and life safety systems in various private and commercial buildings.
Seven months later, Dalton approached Fraser Valley Fire Protection (FVFP) in Abbotsford, B.C. about a sales position because he found it difficult to carry heavy items and wanted a job with less heavy lifting. FVFP said it didn’t have a sales position available, but it was looking for more fire protection technicians. Dalton accepted a technician position, saying that he felt there was a lack of teamwork in his old position and he was looking for a workplace with more teamwork and a better atmosphere.
Dalton started work with FVFP in March 2018. However, after his first day on the job, the employee with whom he worked reported that Dalton wouldn’t take advice, was loud and argumentative, and he went “off on tangents.” The next day, Dalton was assigned to another technician with whom Dalton developed a personality conflict. Dalton criticized a job they worked on and the technician’s professional standards. He also felt the other technician acted unprofessionally with clients and treated him unprofessionally as well. The other technician reported that Dalton worked too slowly.
On March 15, FVFP’s vice-president discussed concerns about Dalton with the HR manager and they agreed to terminate his employment. Dalton had worked for FVFP for three days at that point.
When Dalton returned to the office that day, the vice-president discovered that he had not collected from a customer on a cash-on-delivery job. He called Dalton into a meeting with the HR manager and they dismissed him for “lack of productivity, his lack of following direction and his argumentative nature.” They gave him a cheque for his outstanding pay.
Dalton sued for wrongful dismissal, claiming that he was fired without just cause and added that he had been induced from his previous job. FVFP argued that Dalton was a probationary employee and it was entitled to dismiss him without cause.
Court weighs in
First of all, the court found that FVFP didn’t entice Dalton from his previous position. Dalton initially approached the company and was looking to leave his old employer because of the heavy lifting and lack of teamwork. In addition, he was only employed with the other company for 13 months, with the last seven as a certified fire protection technician.
However, the court agreed with Dalton that he was wrongfully dismissed. Although concerns about Dalton’s performance and how his interpersonal conflict was affecting it were reported to management over his three days of employment with FVFP, the company didn’t discuss any of them with Dalton and he wasn’t given an opportunity to address or correct them. The vice-president and the HR manager only informed Dalton of the concerns at his termination meeting, even though the misconduct constituted “an accumulation of a number of minor failings,” the court said.
“Almost every new employee can be expected to have a period of adjustment to learn their new job and learn what is expected, and if performance is initially below what should reasonably be expected, the employee should be warned and given a reasonable period of time to meet the expected standard.”
As for Dalton’s status as a probationary employee, there was no evidence that this was part of the employment contract. The court noted that FVFP had a document entitled “Three Month Probationary Period,” but it only described it as a “training and learning period” during which “meetings and evaluations will occur as necessary if issues arise” — it didn’t contain any term allowing for summary dismissal.
Plus, Dalton didn’t receive this document until after he was dismissed and there was no evidence he was told that he would start as a probationary employee, the court said.
Noting Dalton’s relatively advanced age and the limited availability of similar employment, the court ordered FVFP to pay Dalton the equivalent of three months’ salary in lieu of notice, totalling $11,440 plus costs. See Dalton v. Fraser Valley Fire Protection Ltd., 2021 BCPC 146.