Tsai v. Bell Mobility Inc. Bell Mobilite Inc. Date:, 2017 BCPC 343

Citation: Tsai v. Bell Mobility Inc. Bell Mobilite Inc. Date: 20171124 2017 BCPC 343 File No: 1657284 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: HUI RONG TSAI CLAIMANT AND: BELL MOBILITY INC. BELL MOBILITE INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. HARRIS Appearing in person: H. Tsai Counsel for the Defendant: A. Nathan Place of Hearing: Vancouver , B.C.

Dates of Hearing: November 23 - 24, 2017 Date of Judgment: November 24, 2017 INTRODUCTION [ 1 ] Ms. Hui Rong Tsai, the claimant, alleges that, the defendant, Bell Mobility Inc. Bell Mobilite Inc., the defendant, terminated her employment without cause. The defendant argues the termination was based on the claimant’s dishonest acts that went to the core of the employment relationship and therefore justified. [ 2 ] The claimant and the defendant called evidence. There is little contradiction on the evidence.

This court must determine, whether or not the claimant was knowingly dishonest and if so was there a breakdown in the employment relationship such that the dismissal was justified. THE EVIDENCE Employment and conditions [ 3 ] On May 6, 2015, the defendant via a letter offered the claimant employment as Customer Care Representative, Chinese Queue.

Contained within the letter was the following: We expect all our employees to conduct themselves with integrity, honesty and loyalty. [ 4 ] The offer of employment indicated that the claimant could acknowledge her acceptance of the offer by signing an attached document titled, Terms of Employment. On May 11, 2015, the claimant signed the document. [ 5 ] Those persons working as Customer Care Representatives, Chinese Queue, were responsible for receiving calls from Chinese speaking customers. These customers typically called regarding bills, hardware or service plans. [ 6 ] Ms.

D’Angelo, a human resource manager, who is employed by the defendant, testified that trust is an essential ingredient for those who work as Customer Care Representative. This is because the Customer Care Representatives deal directly with customers; they had little supervision, and substantial access to customer information. [ 7 ] The claimant started working for the defendant and on May 25, 2015 she signed a document that was prepared by the defendant. The document was titled, Friendly Reminder about Friends & Family Accounts .

This document reminded employees that any modifications, order or form made to an employee’s account or the account of a family member, friend or associate must not be made without forwarding the request directly to the employee’s immediate supervisor. The document then warned the employee that breaching the Code or violating the company policy or procedure could result in disciplinary action, up to and including dismissal. [ 8 ] On June 15, 2015, the claimant signed the defendant’s Code of Business Conduct (the “ Code ”). The Code stipulated that, employees undertake to forward a work environment based on trust.

Also found within the Code are; comments that a violation of the Code can result in dismissal, what constitutes fraud and that the defendant has a zero tolerance policy regarding all confirmed frauds. Allegations of dishonesty/fraud [ 9 ] After approximately 7 months of employment the claimant decided to switch her cellular phone coverage from Fido to the defendant’s company.

At this stage the claimant could enter an employee discounted phone plan offering a 35% discount from regular rates. [ 10 ] The claimant also became aware that a phone plan taken out as a Small Business rate plan would result in $450.00 of credits plus a $100.00 saving on any phone purchased. The claimant learned that a requirement for enrollment in the Small Business rate plan was the ownership of, or, a significant connection to a small business. [ 11 ] Wanting to obtain a Small Business rate plan the claimant contacted Mr. Yu, who was employed by the defendant as a Small Business sales representative.

During their discussions, Mr. Yu told the claimant that a GST number was required before she could receive the benefits of a Small Business rate plan. According to the claimant she told Mr. Yu that she did not know where she could get a GST number and he told her to ask her fellow employees. [ 12 ] The claimant spoke with her fellow employees and she received a GST number. The claimant gave this number to Mr. Yu and he advised her that the number was not valid. The claimant then gave Mr. Yu a second GST number with her husband’s name.

A plan was then activated with the claimant and her husband collectively benefiting by $900 in credits and $200 in phone discounts. [ 13 ] On January 15, 2016 the defendant’s corporate security

section received an anonymous complaint indicating that the claimant had used a falsified GST number in order to obtain a Small Business account. [ 14 ] In response to the complaint, Ryan Brekstad, contacted Mr. Yu’s immediate supervisor. The supervisor was then directed to make inquiries regarding Mr. Yu’s Small Business accounts and their associated GST numbers. These inquires revealed that the GST number provided by the claimant did not match her husband’s name. [ 15 ] The above inquires resulted in Mr.

Yu contacting the claimant and requesting that she provide him with a GST number and the associated business name. [ 16 ] According to the claimant she was prepared to return the phones that she had received and that she did not want to get into

trouble. Rather than cancelling the account Mr. Yu went to the claimant’s work area and gave her a GST number and a company name with the instructions that she email this information to him and to keep it a secret. [ 17 ] The claimant did as she was instructed. She testified that she had never met Mr. Yu and only dealt with him on the phone. She knew he was a senior employee and she thought that her conduct was consistent with what other employees regularly did. She testified that it was her understanding that Mr.

Yu needed the GST number and business name so he could receive a commission and for reference purposes only. [ 18 ] Upon learning that a third GST number had been entered on the claimant’s account, Mr. Brekstad interviewed the claimant. During the interview the claimant acknowledged that she was familiar with the defendant’s Code. [ 19 ] Immediately after her interview, the claimant approached her supervisor and confessed that she had not been forthcoming during her interview. The claimant testified that she had been dishonest because Mr.

Yu had told her to keep things a secret. [ 20 ] When he finished his investigation Mr. Brekstad prepared a report. This report was presented to Ms. D’Angelo, a human resources manager, and a team decision was made to terminate the claimant’s employment immediately. The claimant was advised by way of letter dated March 24, 2016 wherein it indicated that her employment was terminated immediately. [ 21 ] Ms.

D’ Angelo testified the following factors influenced her decision to dismiss; the claimant committed a deliberate fraud, there were 3 attempts at providing an invalid GST number, the claimant was dishonest when confronted, and the claimant’s dishonesty occurred within 6 months of her being hired. It was Ms. D’ Angelo’s perspective that the claimant could not be trusted with customers. [ 22 ] Of note is, on March 22, 2016, the claimant advised her supervisor that she was planning on taking maternity leave within the month. Ms.

D’Angelo was asked if the pending maternity leave had any influence on her decision to terminate and she responded that she too was pregnant at the time and she felt badly about having to terminate. [ 23 ] I am satisfied that the claimant’s pending maternity leave had no impact on the decision to terminate the claimant’s employment. [ 24 ] Evidence was also received that the claimant had been harassed while working for the defendant. Specifically, she had personal items go missing, she had her work equipment go missing, and someone poured coffee or hot chocolate on her work station. It was never suggested to Ms.

D’Angelo that the harassment factored into the decision to dismiss. POSITIONS OF THE PARTIES [ 25 ] The claimant argued that her actions were not fraudulent as she was simply following the instructions of a senior employee. She argues she was simply doing what senior employees supported and that she was not knowingly dishonest. The claimant also states that she never would have engaged in dishonest behavior for such a small amount of money. Finally, the claimant observes that Mr. Yu received a 3 day suspension and she was terminated.

She feels this is unfair and she believes she was terminated to save the defendant the expenses associated with her harassment and pending maternity leave. [ 26 ] The defendant argued that the claimant was knowingly dishonest with the intention of receiving a benefit. In support the defendant points to the claimant’s evidence wherein she acknowledged that she knew what she did was wrong. [ 27 ] The defendant argues the claimant’s dishonesty went to the heart of the trust that was fundamental to the claimant’s continued employment as a Customer Service Representative.

In support the defendant points to the claimant’s position of trust, the continuing nature of the matter (maintaining her enrolment in the plan), the claimant’s length of service, the claimant’s lack of candour when interviewed, and her violation of the Code. [ 28 ] The defendant relies on the following authorities: McKinley v. BC Tel , [2001] 2 S.C.R., Telus Communications Workers Union v. Telus Corp. (Glen Grievance) , [2013] C.L.A.D. No. 272 ., Jain v. Rogers Cable Communications Inc. , [2011] C.L.A.D. No. 120 ., and Roe v. British Columbia Ferry Services Ltd. , 2015 BCCA 1 . THE LAW [ 29 ] McKinley v.

BC Tel , [2001] 2 S.C.R., is the leading case on whether an employee’s dishonesty, on its own, is sufficient cause for immediate dismissal. [ 30 ] In Mckinley , the employee, experienced illness related to the stress that he was experiencing at work. The employee went off sick for a protracted period of time and he was eventually terminated. Subsequent to the employee’s termination new information revealed that the employee’s doctor had advised the employee that he could return to work and that his treatment could commence after his return.

This information was concealed from the employer. [ 31 ] In considering the matter the Court set out the following test at paragraph 49: 49 In accordance with this test, a trial judge must instruct the jury to determine: (1) whether the evidence established the employee’s deceitful conduct on a balance of probabilities; and (2) if so, whether the nature and degree of the dishonesty warranted dismissal. In my view, the second branch of this test does not blend questions of fact and law.

Rather, assessing the seriousness of the misconduct requires the facts established at trial to be carefully considered and balanced. As such, it is a factual inquiry for the jury to undertake. The Court then observed at paragraphs 55 - 57: 55 In light of these considerations, I have serious difficulty with the absolute, unqualified rule that the Court of Appeal endorsed in this case. Pursuant to its reasoning, an employer would be entitled to dismiss an employee for just cause for a single act of dishonesty,

however minor. As a result, the consequences of dishonesty would remain the same, irrespective of whether the impugned behaviour was sufficiently egregious to violate or undermine the obligations and faith inherent to the employment relationship. 56 Such an approach could foster results that are both unreasonable and unjust.

Absent an analysis of the surrounding circumstances of the alleged misconduct, its level of seriousness, and the extent to which it impacted upon the employment relationship, dismissal on a ground as morally disreputable as “dishonesty” might well have an overly harsh and far-reaching impact for employees.

In addition, allowing termination for cause wherever an employee’s conduct can be labelled “dishonest” would further unjustly augment the power employers wield within the employment relationship. 57 Based on the foregoing considerations, I favour an analytical framework that examines each case on its own particular facts and circumstances, and considers the nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship.

Such an approach mitigates the possibility that an employee will be unduly punished by the strict application of an unequivocal rule that equates all forms of dishonest behaviour with just cause for dismissal. At the same time, it would properly emphasize that dishonesty going to the core of the employment relationship carries the potential to warrant dismissal for just cause. [ 32 ] The decision of Roe v. British Columbia Ferry Services Ltd. , 2015 BCCA 1 , provides guidance on factors to consider when assessing whether the nature and degree of the dishonesty justifies dismissal.

At paragraph 27 the Court stated: 27 In particular, the test requires an assessment of whether the employee’s misconduct gave rise to a breakdown in the employment relationship justifying dismissal, or whether the misconduct could be reconciled with sustaining the employment relationship by imposing a more “proportionate” disciplinary response (paras. 48, 53 and 57). A “contextual approach” governs the assessment of the alleged misconduct at this stage of the test (para. 51).

That assessment includes a consideration of the nature and seriousness of the dishonesty, the surrounding circumstances in which the dishonest conduct occurred, the nature of the particular employment contract, and the position of the employee (paras. 48-57). The ultimate question to be decided is whether the employee’s misconduct “was such that the employment relationship could no longer viably subsist” (para. 29).

FINDINGS [ 33 ] I am satisfied the claimant, knowingly circumvented the defendant’s policies related to the Small Business rate plan by submitting 3 GST numbers which she had no connection with and that she did this in order to personally benefit. I find that the claimant was aware that her actions were dishonest and contrary to the Code. [ 34 ] I do not accept the Claimant’s assertion that Mr. Yu was controlling her and that his seniority caused her believe that her actions were acceptable. The claimant never met Mr.

Yu, he was not her direct supervisor and he had no authority over her. [ 35 ] I do not accept that the claimant felt she had done nothing wrong. If the claimant felt she had done nothing wrong then, it makes no sense that she would be less than forthcoming during her interview with Mr. Brekstad. At a minimum, when and if, Mr. Yu told the claimant to keep things a secret, this would have been a signal to the claimant that her actions were dishonest. [ 36 ] I also observe that, the claimant placed the plan in her husband’s name, Todd Taranov.

I see this as the claimant attempting to conceal her involvement from the defendant. Simply stated, she used her husband’s name so her name would not raise any suspicions with the defendant. [ 37 ] As for comments from other employees suggesting that submitting a GST number was alright, if such an action was alright, then it makes no sense that a GST number and company name would be required at all.

It was clear that the benefits were for those associated to a small business and the method of proving the connection was via a GST number and business name. [ 38 ] Finally, I find the claimant’s acts of dishonesty were committed when she knew that, honesty, integrity and loyalty were the foundations of the defendant’s corporate policy and practice.

She also knew that there was a zero tolerance for fraud and that a possible consequence for breaching the Code was discipline up to and including dismissal. [ 39 ] In my view the claimant’s conduct resulted in a break down in the employment relationship thereby justifying the claimant’s dismissal. In reaching this conclusion, I observe that, integrity, honesty and loyalty were integral to the defendant’s corporate culture. I also note that the claimant’s position requires an employee who is honest, and trusted.

I arrive at this conclusion because the claimant dealt directly with customers, she had access to customer account information and she worked with little supervision. Finally, I find that the claimant’s conduct was serious in that she took advantage of a vulnerability within the enrolment process and she did this for her sole benefit. CONCLUSION [ 40 ] I find the claimant acted fraudulently and that her conduct went to the core of her relationship with the defendant. As such the defendant was justified in dismissing the claimant. The claim is dismissed. ________________________ The Honourable R.P.

Harris Provincial Court Judge