Ontario worker awarded 20 months’ notice plus <i>Wallace</i> damages

An Ontario company that fired an employee without just cause must pay additional damages for its vindictive behaviour when the employee filed a grievance, according to a ruling by the Ontario Superior Court of Justice.

Robert Kitzman, 62, worked for Babcock and Wilcox Ltd. for more than 33 years. At the time of his firing, he was a senior technical buyer, which involved purchasing pipes and fittings for boilers which the company produces.

In July 1999, Kitzman was given a termination letter upon his return from vacation. He was told he was being fired for “wilful neglect” of his duties. He sued for wrongful dismissal and the company responded by countersuing him for $350,000 for losses suffered as a result of his negligence.

Justice Patrick Flynn found Babcock and Wilcox did not follow through with its own process for discipline and termination of an employee. Through various memos presented to the court, it was evident Kitzman had issues with management and they were looking to get rid of him.

The company claimed Kitzman failed to do his job properly by not seeking competitive bids for pipes on a project, but Kitzman indicated he had been told not to return to the seller to “adjust” the pricing template, despite the opportunity being available.

The judge felt Kitzman’s past issues were being held against him, despite an earlier probation and evaluation which apparently were satisfactory and had been resolved. Babcock and Wilcox’s own termination policies dictate progressive discipline before termination but, “in this case, only immediate termination was ever contemplated by the company. (Management) had no intention of following the company policy in respect of Mr. Kitzman.”

As for the company’s counterclaim, Justice Flynn could not find any evidence it had suffered any losses as a result of Kitzman’s job performance. The judge felt the countersuit was designed to be more of a threat to Kitzman and any others who would take matters to the courts and had no real merit.

“The bringing of the counterclaim can be seen as a loud and clear warning to any employee who dares to sue Babcock and Wilcox Ltd. for wrongful dismissal,” Justice Flynn said. “In my view, the evidence does not establish any loss whatsoever by (the company) occasioned in any manner by (Kitzman’s) conduct.”

Justice Flynn ruled Kitzman’s firing was not appropriate treatment of an employee with Kitzman’s service and it was contrary to the company’s own policies. Kitzman was awarded 20 months’ notice ($50,850) minus income for a part-time job he had at the time for reasonable notice.

Additionally, Justice Flynn found the worker was entitled to an additional three months’ Wallace damages ($12,951) due to the company’s “unfair, harsh, vindictive and malicious conduct” in pursuing the counterclaim, which “breached its ‘obligation of good faith and fair dealing’, both in the way in which it dismissed (Kitzman) and in the way it reacted to his claim for wrongful dismissal.” See Kitzman v. Babcock & Wilcox Canada Ltd., 2006 CarswellOnt 5764 (Ont. S.C.J.).

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