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Digest of the Week | After-acquired Cause

Employer dismissed employee without appropriate consideration and investigation; Employer did not show conduct incompatible with employee's duties which went to root of contract

Kerr v. Arpac Storage Systems Corporation | 2018 BCSC 704 | British Columbia Supreme Court

Labour and employment law --- Employment law — Termination and dismissal — Termination of employment by employer — What constituting just cause — After-acquired cause

Seventy-year-old employee worked for equipment supply and training business (employer) for 22 years at base salary of $65,500 with $9,625 and $9,825 annual bonuses including portion if Certificate of Recognition audit was passed — After audit was not passed and HR manager, C, had several disagreements with employee, employee's position was eliminated and employee was terminated without cause and offered 12 months' working notice, provided employee faithfully and diligently carry out his duties under C's direction — Employee altered order of employees' names in spreadsheet and deleted personal and company emails, forwarding some to home email address — Employee called in sick, provided doctor's note advising he was not in proper state to work, and was diagnosed with severe reactive depression — Employer discovered alteration and deletions, withdrew working notice, and rejected employee's apology and offers to rectify spreadsheet alteration and return once medically cleared to do so — Employee brought action for wrongful dismissal — Action allowed — Employer dismissed employee without appropriate consideration and investigation — Employer did not show conduct incompatible with employee's duties which went to root of contract — Three episodes of wrongful conduct over five days occurring after long record of good service while employee was suffering from medical condition justifying medical leave should have created greater scope for alternative consideration of disciplinary measures short of termination — Most emails were backed up on cloud and were recovered completely and accurately — Deletions were not harmful to conduct of business at material level — There was no suggestion employee intended to put emails to nefarious use — Employer did not pursue all means available to recover spreadsheet, including allowing employee to restore it — There was little evidence emails were critical and that employer was in sensitive industry — Inevitability of employer's discovery of deletions and spreadsheet made it difficult to characterize employee's conduct as dishonesty — There was no evidence employee disclosed confidential information for personal gain — Given advanced age, appropriate notice period was 20 months less month for anticipated mitigation — Employee was awarded $112,071, being $103,708 for 19 months' salary less $6,224 actual mitigation earnings to date, plus 50 per cent of potential bonus entitlement, being $7,778, plus RRSP benefits of $5,574 and cell phone benefits of $1,235.
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