Overzealous security guard fired

Alberta court reduces notice period because employee knew he was on thin ice

A security officer was not entitled to full notice when he was fired because he already knew he was on thin ice with his employer, an Alberta court has ruled.

Michael Bartolome joined Alberta Investigation and Loss Prevention Inc. in November, 2001. From Jan. 1, 2003, his status was that of a contract worker: He was paid so that the regular deductions for employment insurance, pension and income tax were not made. He’d obtained a GST registration number and charged his employer GST for his services.

In July 2004 Bartolome was on patrol and thought he heard gunshots. Against the advice of his supervisor, he contacted the police. But the shots turned out to be fireworks being set off to celebrate Canada Day.

Bartolome was fired. Alberta Investigation claimed this was the last straw, that Bartolome was an overzealous troublemaker and the company was always apologizing for his aggressive tactics. On occasion clients had complained and he had to be transferred to other jobs, it said.

In addition to just cause, the company said Bartolome was not entitled to any pay in lieu of notice as he was an independent contractor free to work for others.

The Alberta Provincial Court ruled Bartolome’s official status changed when he started working on contract, but his relationship with Alberta Investigation was still one of master and servant. He took instruction from the company on where and when he would work. He was told what he would be doing and he was still paid by the hour. The change in the manner of payment was as much for the company’s convenience as it was for Bartolome’s benefit, the court said.

At minimum Bartolome was an “intermediate” worker between a traditional employee and an independent contractor, found the court. It said the length of the employment relationship, the extent to which the worker relies on the relationship for his economic livelihood, and the number of alternate sources of similar work to the “dependent contractor” are considerations which determine an intermediate worker’s entitlement to notice.

The court found there was not just cause to terminate Bartolome’s employment. He was not always obedient, but there was no conduct which fundamentally undermined the employment relationship between him and the company. Bartolome was an enthusiastic employee in protecting the clients’ property.

This was sometimes a bane but it was also a benefit to the company, it said.

The court added, however, that there was a strained relationship between the parties, that Bartolome “knew he was on thin ice” with the company and therefore he was not entitled to as much notice as he would otherwise be. The court ultimately awarded him three months’ notice plus $1,100 the court found the company still owed him, less what he’d earned in mitigating his losses.

For more information see:

Bartolome v. Alberta Investigation & Loss Prevention Inc., 2005 CarswellAlta 1482, 2005 ABPC 290 (Alta. Prov. Ct.)

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