Worker overestimates changes to position

Conflict with co-worker, manager’s refusal to make worker’s suggestions company policy not repudiations of employment contract: Court

A British Columbia worker has lost his constructive dismissal claim that stemmed from his employer’s refusal to adopt his suggestions into company policy and conflict with a co-worker.

Reza Baraty, 70, was hired by Wellons Canada — a manufacturer and supplier of wood and gas-powered systems and equipment for the lumber and oil sands fields based in Surrey, B.C. — in October 2012 to be the company’s chief estimator.

The chief estimator position was involved in preparing estimates for projects and at the time Baraty was hired, the estimating department had one chief estimator and one estimator. All estimates by each were reviewed by the other — a process called “counterchecking.” It was a collaborative environment, though Baraty as the chief estimator was responsible for assigning new estimates received from the sales department. He also had to monitor workflows and schedule vacations for department staff, though most of the job involved doing estimates.

Soon after he was hired, Baraty developed a document on procedures that he felt would help with the structure of the estimating process and reduce arguments between the other estimator and his predecessor — who had left for medical reasons and returned to do some part-time estimating. The document also identified tasks to be done only by the chief estimator, but the other estimator believed some of those tasks were normally done by whomever was assigned to the particular estimate.

Wellons’ general manager accepted the document and presented it to an auditor who had concerns about discrepancies between written estimates and actual costs. The document wasn’t officially made into company policy, though Baraty was under the impression that it had been, despite the fact not all of the practices were followed — for example, the document recommended departmental meetings every day or every second day but this didn’t happen.

Baraty began having trouble with the other estimator, who would send his comments from counterchecking Baraty’s estimates not just to Baraty, but other employees in different departments. Baraty felt the comments should only be going to him and complained about it to the general manager.

The relationship between Baraty and the other estimator worsened to the point where they only communicated by email and avoided each other in person. This seemed work fine, as they processed 150 estimates per year with few problems for Wellons.

Worker felt he was being pushed out

In April 2017, a new general manager joined Wellons. He called a meeting to discuss a particular project and invited the other estimator but not Baraty. Baraty took offence, and the new general manager later invited him to join. The next day, the general manager met again with the other estimator to walk through a spreadsheet on the project as a training session. Baraty wasn’t invited because he hadn’t worked on it.

Baraty believed that the other estimator had called both meetings and the fact he hadn’t been invited to either was a sign that Wellons was trying to push him out. He wrote to the new general manager on May 4 to say it wasn’t possible for him to continue his job due to “continued insolences and intolerable behaviour of estimation staff (the other estimator) which insofar has caused me several strokes.” He said the other estimator was under his supervision and they should follow the procedures he had developed. He stated he would stop coming into his job as of the next day until he received the company’s “written acceptance of company’s official estimation procedures copied by management to department managers and staff and end to continued harassment by (the other estimator).” If Wellons failed to meet his demand, he said he would “seek legal remedies and stop my work to existence of undesirable workplace, insult, harassment, and intentional humiliation.”

The general manager responded and explained it was an accident he was missed for the first meeting — he apologized for the “honest mistake” — and he called the second meeting to walk through a spreadsheet with which Baraty had not been involved.

Baraty maintained that the other estimator had called the meetings and repeated his demand for confirmation that his estimation procedure would be followed by all managers and staff. The general manager replied that the procedures had not been made company policy so he couldn’t meet Baraty’s demand. He requested Baraty report for work the next day or inform the company of his intentions regarding his job.

The general manager reviewed Baraty’s procedures and was willing to meet to discuss them, but Baraty still felt he was being pushed out because the general manager told him that, under the current circumstances, he would be managing the estimation department while Baraty remained responsible for assigning work and training a new estimator. They met the next day and discussed general ideas about the estimation department and a vacation request. The request was approved and Baraty went on vacation June 2, but never returned to work. The other estimator was appointed to the position of chief estimator and Baraty sued for constructive dismissal, arguing the general manager’s assumption of authority meant Baraty was being demoted.

The B.C. Supreme Court found Baraty tried to get the new general manager to enforce his written estimation procedures and make the other estimator comply with them, but was unsuccessful. Since he misunderstood that the procedures had not been made company policy, he interpreted the general manager’s refusal and statement about managing the department to be a demotion.

However, the court also found that even if Baraty’s belief was correct, the changes to his position weren’t substantive enough to constitute constructive dismissal — there was no change to Baraty’s pay, title, or responsibilities regarding assigning work, training a new estimator, and monitoring workflow in the department. The court pointed out that “not every change to the employment contract will be so fundamental so as to allow the employee to treat the change as amounting to a repudiation by the employer.”

“(Baraty’s) role as chief estimator was neither eliminated nor fundamentally changed,” said the court. “(He) was therefore not entitled to treat his contract of employment as being breached by (Wellons).”

The court also found the poor relationship between Baraty and the other estimator and Wellon's inability to fix it could not be seen as repudiation of the employment contract.

“Unfriendliness, confrontations between co-workers or even some hostility and conflict will not amount to constructive dismissal where the employee is still able to perform his or her work,” said the court. “The threshold for a claim of constructive dismissal based on the employer’s conduct in the workplace is whether a reasonable person in the circumstances should not be expected to persevere in the employment.”

The court dismissed Baraty’s claim, determining he had not been subjected to conditions that indicated an intention to not follow the employment contract.

For more information see:

Baraty v. Wellons Canada Corp., 2019 CarswellBC 39 (B.C. S.C.).

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