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Is an Appeal brought by Performance
Development Ltd ("Performance Development" or the "employer") pursuant to
section 112 of the Employment Standards Act (the "Act") from a Determination
issued by the Director of Employment Standards (the "Director") on January 9th,
1997 under File No. ER-067-579 (the "Determination").
The Director determined that Performance
Development terminated the employment of Neville Jewel ("Jewell") because he
filed a complaint under the Act claiming unpaid overtime pay. Accordingly, the
Determination was issued against Performance Development under sections 79 and
83 of the Act. The Determination, in the amount of $6,569.96, represents lost
wages during the period October 21st, 1996 to November 29th, 1996 (including 4%
vacation pay) and interest.
In the original Determination, the wage
loss was stated to span the period October 21st to December 27th, 1996,
however, the Director's delegate advised the Tribunal, by way of memorandum
dated May 15th, 1997, that the Determination should have only referred to the
period ending November 29th, 1996. So far as I am able to ascertain, the
Director has not formally varied the Determination pursuant to section 86 of
the Act.
The following notice appears on Page 2 of
the Determination:
"Please note that further
determinations will be issued for additional wages losses [sic] until Neville
Jewell secures full employment."
Although the Director indicated that
further determinations would be issued, as at the date of the appeal hearing,
the Director had not issued any other determinations against the
employer.
The appeal hearing was held at the
Tribunal's offices in Vancouver on July 28th, 1997 at which time I heard
testimony from nine witnesses - Jack Bray, Dennis Moroney, Blair Rampling, Mike
Kovalick, Desmond Murphy, Philip Scyner, Sukh Cheema, Paul Martin and Derek
Pampling - on behalf of the employer, and from Jewell on his own behalf. The
Director did not appear at the appeal hearing.
Due to the lateness of the hour, at the
conclusion of the hearing it was agreed that, rather than reconvene on another
day for final submissions, the latter would be submitted in writing. In light
of the fact that Jewell had been, during the course of the hearing, in contact
with someone at the Director's office, I also indicated to the parties that I
would be inviting written submissions from the Director, which subsequently did
on July 30th, 1997 by way of a letter faxed to the Director's delegate who
issued the Determination. I received prior to the August 20th, deadline which I
faxed for receipt of the …..
ANALYSIS
This is not a case about whether or not
the employer had just cause for dismissal. Rather, the issue before me is
whether or not retaliatory measures were taken against Jewell "because a
complaint or investigation may be or had been made under [the] Act (see section
83).
Thus, I must be satisfied that the
employer's actions in unilaterally reducing "Jewell's wages, and then
terminating him when he refused the wage cut, were motivated, at least in part,
because Jewell had filed a complaint under the Act. In other words, the
employer must have acted with some sore of mala fides.
My task is complicated by the fact that
the Determination itself does not set out any rational basis for concluding
that the employer was acting in bad faith and the Director chose not to attend,
call evidence, or make submissions on the evidence, at the appeal hearing. The
Director appears to have drawn the inference that because the complaint was
filed prior to Jewell's termination, the employer must have been acting in bad
faith. I cannot accept, absent any other evidence, that because some
disciplinary or other action follows the filing of a complaint, Section 83 of
the Act has been breached.
The evidence before me clearly discloses
that from early January 1996 the employer repeatedly made know to Jewell its
dissatisfaction with his job performance. This dissatisfaction resulted in
gradual, but not continual, "stripping away" of the additional responsibilities
that had been given to him in late 1995 when his wage rate was more than
doubled to $26 per hour. I accept that Jewell misrepresented his educational
qualifications in order to secure that additional responsibilities that he
ultimately proved unable to handle.
There is absolutely no evidence before me
upon which I can reasonably conclude that the employer knew or suspected that
Jewell had filed an overtime complaint and that, in turn, this complaint
motivated the employer's actions. None of the Director's correspondence refers
to Jewell being the complainant; Jewell sought from the Director, and was
given, a promise of confidentiality. If the employer know or suspected that
Jewell was the complainant-the employer's evidence, which I accept, is that the
suspected complainant was a former employee who had recently left the firm on
bad terms-why would the employer call a staff meeting? Why not simply confront
Jewell directly? Why would the employer almost immediately have its accountant
meet with Jewell to sort our his overtime claim and immediately issue him a
cheque for an amount that Jewell believed to be "in line with what I
expected"?
It may be true that the employer was in an
agitated state and was demanding particulars regarding Jewell's overtime claim,
but that agitation must be considered in light of an Employment Standard
directive that the matter had to be dealt with "within fifteen days" or else
"formal action" would be taken under the Act. It should also be noted that the
effect of the employer's October 21st letter was only to return Jewell to the
wage level (in fact, slightly higher) he started at in the fall of 1995 when he
was hired to do, essentially, the same job he was now doing in the fall of
1996. His termination ensued only when he refused to accept the pay cut. As I
noted above, whether or not the proffered pay cut constituted, as a matter of
law, a constructive dismissal, is not the issue. The key point is that the
employer believed that it had just cause to act as it did and the employer's
rationale for acting did not include the knowledge or suspicion that Jewell had
filed a complaint under the Act.
Prior to filing his complaint, Jewell knew
that his employment was at risk; he admitted as much during the hearing. His
performance deficiencies and misrepresentation of educational qualifications
were well-known to the employer prior to the fall of 1996. One could just as
easily characterize Jewell's complaint as part of an overall attempt to
leverage his position so as to secure the maximum advantage for himself should
he be terminated. Why, for example, did he not call the employment standards
officer on the morning of October 18th when his overtime claim as, apparently,
resolved to his satisfaction? He was certainly quick to telephone the officer
on the morning of October 21st when he was terminated.
In light of my conclusion that the
employer did not take any retaliatory action against Jewell because he filed a
complaint under the Act, I do not find it necessary to deal, at any length,
with the issue concerning the appropriateness of the remedy ordered in this
case. I would say this, however, I did carefully consider the submissions of
all the parties on the "remedy" issue and, on balance, I am included to the
view espoused by counsel for the Director in her written brief.
ORDER
Pursuant to section 1115 of the Act, I
order that the Determination issued in this matter, dated January 9th, 1997 and
filed under number ER-067-579 be cancelled
Kenneth Wm. Thornicroft, Adjudicator
Employment Standards Tribunal.
Comments / Questions?
Mr. Lawrence W. Coulter
Employment Lawyer
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