Grikinis v. Mid-City Roofing Date:, 2014 BCPC 153

Citation: Grikinis v. Mid-City Roofing Date: 20140704 2014 BCPC 0153 File No: 39350 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: RALPH FRANK GRIKINIS CLAIMANT AND: MID-CITY ROOFING & SHEET METAL

(2008) LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: Mr. Ralph Grikinis Counsel for the Defendant: Mr. Luke Bergerman Place of Hearing: Kamloops , B.C. Date of Hearing: May 6, 2014

Date of Judgment: July 4, 2014 [ 1 ] Ralph Grikinis is claiming against the Defendant, Mid-City Roofing & Sheet Metal

(2008) Ltd., for wrongful dismissal. He began working with the Defendant in April, 2005 as a sheet metal tradesman. He claims he was the foreman although that precise role does not seem clear. [ 2 ] On September 15, 2011, he went to work feeling ill. Ultimately he went to emergency and it was determined that he had suffered a major heart attack. Mr. Grikinis was admitted to the hospital. [ 3 ] In the meantime, Mr. Grikinis’ son, Edmond Grikinis, had been taken on as an apprentice with the Defendant. Mr. Grikinis gave Edmond his cell phone and instructions to cover Mr.

Grikinis’ position while he was in the hospital. [ 4 ] Mr. Grikinis was discharged from the hospital on September 26, 2011 and was scheduled to be off work for six months to March 31, 2012. He understood that Edmond Grikinis would continue in his place. Toward the end of his leave, Mr. Grikinis would stop in to speak to the Defendant’s manager to keep him up to date on his condition. [ 5 ] In February, 2012, Mr. Grikinis said that he spoke to the manager, Andrew Fitton, who agreed that Mr. Grikinis could return the following week to do light duty.

He was also advised that the shingle estimator had steel coming in. [ 6 ] Mr. Grikinis said he called the Defendant the following week to see if the steel had arrived. He was advised that it had not arrived. Also, Mr. Mike Raynor told him it was not a good idea to return to work. Mike Raynor is an owner of the company that owns the Defendant. Mr. Raynor declined to accommodate a gradual reinstatement for Mr. Grikinis. [ 7 ] Mr. Grikinis returned to work on the first week of April and found that the Defendant was under new management. He had not been told this.

The new manager, Martin Villasenor, told him he no longer had a position there. Mr. Grikinis was shocked and asked why. Mr. Villasenor said if Mr. Grikinis wanted to work with the Defendant, he would have to talk to the new sheet metal man. There was a confrontation with Mr. Villasenor after which Mr. Grikinis agreed to meet with this new sheet metal person, Dan Thompson. Mr. Grikinis understood that he was to meet with Mr. Thompson on three occasions so he could be evaluated. He understood he would be called the next week but he never heard from the Defendant again. [ 8 ] Under cross examination, Mr.

Grikinis agreed that he had no signed employment contract. He was paid $25.00 per hour based on a 40 hour work week, which payments came twice a month. He said that he was given a record of employment that said he was terminated for a work shortage. The records of employment provided to Mr. Grikinis over time identify him as a sheet metal installer. He was last paid in September, 2011. [ 9 ] Mr. Grikinis understood that Mr. Fitton had work for him but Mr. Raynor said in no uncertain terms was he to return to work, nor was his son. His son had quit in the fall.

I find that the issue with respect to Edmond Grikinis is independent of any issues respecting Mr. Grikinis and had nothing to do with the Defendant not wishing Mr. Grikinis to return to work at that time. [ 10 ] Mr. Villasenor told Mr. Grikinis that he was no longer the sheet metal foreman but would not explain anything to Mr. Grikinis. [ 11 ] Under cross examination, Mr. Grikinis agreed that there had been other labour shortage layoffs in the time of his employment. In the first three years, they were very busy so the layoffs were short.

After the economy was slow, he would be laid off and go onto employment insurance. His record of employment would state the date of return was unknown. He would always get called back. [ 12 ] In cross examination, Mr. Grikinis said that when he was refused gradual return in February, he began looking for work around town. He went up to Aberdeen to Laval Crescent to three or four different roofing outfits to let them know he was available and gave them his card. [ 13 ] Mr. Grikinis said he did not get another job until July, 2013. He collected employment insurance until late August, 2012.

He now works at Inland Ice doing swamping at $14.00 per hour. [ 14 ] Mr. Fitton testified that Mr. Grikinis did keep contact every other week while he was off on sick leave. He discussed Mr. Grikinis’ return to work with Mr. Raynor to whom Mr. Fitton reported. Mr. Fitton wanted Mr. Grikinis back but Mr. Raynor did not. He agreed that he was in favour of light duty work for Mr. Grikinis’ gradual return, but Mr. Raynor did not agree. In the meantime, another sheet metal foreman was hired and another apprentice. They took the positions of the two Grikinis’. [ 15 ] Mr. Fitton himself was laid off in March, 2012.

He was with the Defendant for seven months of which Mr. Grikinis was absent for part. Mr. Fitton agreed that the number of people on staff at any given time was from 5 to 15, depending on the volume of work. [ 16 ] Mr. Fitton said that he did not receive a doctor’s note about Mr. Grikinis’ absence but he was aware that he was off and for what reason. There was a conflict in that time with Mr. Edmond Grikinis, whom Mr. Fitton felt did a good job, but there was too much conflict. Dan Thompson was brought in to replace Mr. Grikinis because Mr. Grikinis was sick and Edmond Grikinis was absent without leave. Mr.

Thompson took over as the installer in December, 2011. Mr. Fitton said that Edmond Grikinis was not let go, he simply disappeared. He knew that Edmond Grikinis was not happy with his pay but the Defendant felt they were paying him more than he was worth. [ 17 ] Mr. Raynor purchased the Defendant company in April, 2008. He said economic conditions were good in Kamloops at the time. This continued until 2010. Then the volume of work started to taper off. In slow periods, the estimators, manager and perhaps some flat roofers and shinglers stay on in the slow periods. Mr.

Raynor said that skilled trades are difficult to recruit and the supply is poor in Kamloops.

[ 18 ] The winter months tend to be slower with the summer months being the busiest. [ 19 ] Mr. Raynor said there were no problems with Mr. Grikinis. He showed up steadily, his work was average to good and there were no real issues. He was concerned that he received no letter from Mr. Grikinis regarding his illness, but he spoke with Mr. Fitton numerous times after he learned of Mr. Grikinis’ sick leave. A record of employment was issued by the Defendant for Mr. Grikinis’ medical leave. [ 20 ] During the time that Mr.

Grikinis was off and Edmond Grikinis was covering for him, there were attendance issues and work quality issues. Mr. Raynor cited the Thompson Rivers University installation which apparently had several issues related to it. As a result, Mr. Raynor contacted a sheet metal installer he had in Vancouver and moved him up to start working in the Kamloops area. This was Dan Thompson. The cost of moving Mr. Thompson to Kamloops was considerable but necessary. [ 21 ] Mr. Raynor said that before Mr. Grikinis returned to work, Mr. Raynor needed medical paperwork saying Mr.

Grikinis was able to come back and how much he could do. He received nothing. For him, given the nature of this work, it was a big risk to have Mr. Grikinis come back without medical approval. [ 22 ] At the time that Mr. Grikinis was looking to return to work, the Defendant did not have much work and already had a person in place. Mr. Raynor said that skilled tradesmen are just not let go in the industry. If they had the work, they would have kept Mr. Grikinis busy. [ 23 ] Martin Villasenor was the new manager at the time that Mr. Grikinis came back to work.

He has had general overview of the company including the employees, projects and estimators. On a return to work, Mr. Grikinis was expected to report to the new manager and then to the foreman, Dan Thompson, after that. [ 24 ] Mr. Raynor learned of the heated discussion between Mr. Grikinis and Mr. Villasenor. He heard nothing from Mr. Grikinis after that. [ 25 ] There was a good deal of cross examination about whether Mr. Thompson was in town before Mr. Grikinis’ illness and whether he had already been doing work in the area.

The Defendant is owned by another roofing company which has projects throughout the province and sends installers where they are needed. It has no bearing on this case whether Mr. Thompson had been working in Kamloops on other projects at that time. [ 26 ] Additionally, Mr. Grikinis cross examined Mr. Raynor about the length of time he had been employed by the Defendant. Mr. Raynor said that the parent company had purchased the pre-existing Defendant. In the process of that purchase, all employees were terminated and re-hired. As a result, Mr. Grikinis’ employment extended from 2008 to 2012. [ 27 ] Mr.

Raynor agreed in cross examination that if he was completely satisfied with a doctor’s note that Mr. Grikinis was fit to come back, he would have put Mr. Grikinis to work either in the shop or on site provided there was work. [ 28 ] Mr. Raynor denied that he knew Mr. Grikinis was not coming back to work. He was firm that the only delay in Mr. Grikinis returning to work was providing medical information that he was fit to do so. [ 29 ] Mr. Villasenor started as the manager of the Defendant in March, 2012. He has been in roofing since 1977.

He has been in supervisory positions since 1993. [ 30 ] Dan Thompson was the installer when Mr. Villasenor started with the Defendant. Mr. Thompson and his apprentice were busy in March, 2012. The first contact with Mr. Grikinis was when he came into the office to make Mr. Villasenor aware that he was ready to come back to work. [ 31 ] Mr. Villasenor met with Mr. Grikinis in his office. Mr. Villasenor said that it was no problem returning and that the Defendant would see what it could do. He believed Mr. Grikinis was inebriated when he came in. Mr.

Grikinis became very animated, boisterous and antagonistic. [ 32 ] Ultimately, Mr. Villasenor told Mr. Grikinis that he could return on the Monday and he would take it from there. Some work would be assigned for him. Mr. Grikinis wanted to come in and be in charge but Mr. Villasenor had already established a relationship with Mr. Thompson. He decided to have Mr. Grikinis work with Mr. Thompson until something came up for Mr. Grikinis. [ 33 ] When Mr. Grikinis came in on the Monday, he met with Mr. Villasenor. He told Mr. Grikinis they had some fabricating to do. Mr. Grikinis went in and worked with Mr.

Thompson on that fabricating. He never came back after that. He never reported and he never called Mr. Villasenor. Mr. Villasenor agrees that he may have told Mr. Grikinis to report to Mr. Thompson on the first day. However, he said it was not for evaluation. He was aware that Mr. Grikinis was an older and established employee. Mr. Villasenor denied that he had left the hiring to Mr. Thompson saying that he was inexperienced at that role and Mr. Villasenor was not yet familiar enough with him. [ 34 ] In the end result, Mr. Grikinis feels that he was terminated without cause.

He felt that the manner in which he was terminated should result in compensation. He felt he should be able to say that he was fit without the necessity of medical reports because he had been with the Defendant for so long. That is misguided. It is the entitlement of the Defendant to ensure that its employees are fit for the work they will be assigned. Where a person has been off for heart surgery, it is even more important that the employee confirm he is fit to return, especially in an industry as physical as this one. [ 35 ] Mr.

Grikinis cited several sections of the Employment Standards Act and Human Rights Code respecting termination while on sick leave and discrimination against a person due to age. I find that neither of these is applicable to these circumstances. Mr. Grikinis was not terminated while he was on sick leave. He left his employment without notice. He was not discriminated against. Quite the contrary. I accept the evidence of the Defendant’s witnesses that skilled trades in this area are difficult to find and Mr. Grikinis would

have been put to work as soon as the volume increased. In any event, damages for discrimination are outside of the jurisdiction of this court. [ 36 ] Mr. Grikinis seeks one month per year of service for compensation based on an average annual income of $30,000. There are a number of problems with that claim. The amount of work over the years has decreased and so any amount of compensation would have to be based on his income in 2011 and a comparison to the 2012 work volume. Furthermore, it would not be based on seven years of service but on the four years of service with this Defendant.

Finally, there was never an obligation to commit to Mr. Grikinis for any specified period of time or for any volume of work given the nature of the industry and its declining pattern over the recent years. Mr. Grikinis also failed to prove he was the foreman and therefore entitled to work assignments ahead of Mr. Thompson. His records of employment described him as an installer, not a foreman. [ 37 ] As the Defendants argued, Mr. Grikinis was on medical leave and ought to have provided medical evidence that he was able to return to work and perform his duties.

The work is difficult and often dangerous which emphasizes the need for this requirement. [ 38 ] The Defendant rightly likened Mr. Grikinis’ return to work as being similar to returning after a layoff or when looking for further work. He did not ingratiate himself with the manager but was still offered interim work until the volume increased. He did not follow up with the manager after one day of return to work or even with the owner. He simply stopped showing up. [ 39 ] Mr. Grikinis was on employment insurance until August, 2012. The Defendant argued that if the court found Mr.

Grikinis had not quit, then the notice should be accordingly very short. It was common, ordinary and part of the industry standard that there would be periods of dismissals for weeks and even months. This is supported in the records of employment and the pay cheque statements in evidence. [ 40 ] The Defendant also argued that Mr. Grikinis did apparently have difficulty finding work. However, the labour pool in Kamloops is not well supplied. There are not a lot of skilled labourers in town and therefore there should have been better opportunities for Mr.

Grikinis if he had made the proper efforts to find further work. This is a bit circuitous given that the Defendant also argued its own volume was declining and sporadic. However, Mr. Grikinis does not appear to have found work in his field by the busy summer months. This has not been adequately explained in Mr. Grikinis’ evidence. [ 41 ] I find that Mr. Grikinis left his employment. I do not find that there was a termination. Mr. Grikinis was expected to show up for work and did not. He was going to be given some fabricating work with Mr. Thompson until the volume increased and until Mr.

Grikinis provided medical evidence that he was capable of returning to work. Mr. Grikinis chose not to accept the conditions of his return to work. [ 42 ] In any event, this was a lay off period and Mr. Grikinis would not have been given much if any work. Furthermore, there is never any guarantee in the industry of a return to work even though the pattern had been thus. The records in evidence show that the work over the years was declining, while the employment insurance was increasing. Even if Mr.

Grikinis had provided medical evidence that he was capable of returning to work, there is no certainty that he would have had work to do. [ 43 ] Even if Mr. Grikinis had been terminated, his notice period would have to be, accordingly, extremely short. There is evidence that it took him some considerable time to find further work. I am not satisfied that he made the appropriate efforts by simply showing up at roofing companies and dropping off his card. With the labour pool being the way that it was, Mr. Grikinis ought to have found further employment much more quickly than he did. It is unclear to me why Mr.

Grikinis is now working in an employment field which pays him so much less than roofing did. However, that is not a function of anything that the Defendant has done. [ 44 ] I dismiss Mr. Grikinis’ claim with reasonable costs to be assessed by the Registrar awarded to the Defendant. _____________________________ S.D. Frame Provincial Court Judge