Davidson v. Extreme Excavating Ltd. Date:, 2015 BCPC 211

Citation: Davidson v. Extreme Excavating Ltd. Date: 20150722 2015 BCPC 0211 File No: 40148 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: GLORIA MARLENE DAVIDSON CLAIMANT AND: EXTREME EXCAVATING LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: Ms. Gloria Davidson Counsel for the Defendant: Ms. Kelsey Robertson Place of Hearing: Kamloops , B.C. Date of Hearing: May 12 and June 23, 2015 Date of Judgment: July 22, 2015 [ 1 ] This is Ms. Davidson’s claim against Extreme Excavating Ltd. for wrongful dismissal. She also seeks punitive damages for the

[ 1 ] This is Ms. Davidson’s claim against Extreme Excavating Ltd. for wrongful dismissal. She also seeks punitive damages for the manner in which she was terminated. The Defendant defends the claim on the basis that Ms. Davidson was terminated for cause but was paid in lieu of notice adequately in any event. Termination [ 2 ] Ms. Davidson is an accounting clerk. She began her employment with the Defendant in October 2010. On April 13, 2014, Ms. Davidson returned from vacation to see that she had a message on her answering machine from the owner of the Defendant, Doug McLeod.

He asked that she give him a call on his cell phone as soon as she returned. She was due back to work the next day. She phoned the cell number and left a message. He returned her call. He told her they decided to make changes and that she did not need to come in. He also told her that he did not want her to show up and cause a scene so she asked him to let her know when she could pick up her personal belongings. [ 3 ] The Defendant offered her eight week’s pay, advising that she was entitled to four under the Employment Standards Act . Ms. Davidson asked for a face-to-face. Mr.

McLeod told her that he would call her when he was finished with an emergency appointment with his mother. Ms. Davidson did not hear from Mr. McLeod until April 15. She was not feeling well at the time so they deferred their conversation until April 17. The Easter weekend was coming up so they agreed to meet on April 22 in the office. On that day, she collected her personal belongings. They had put them in a bag for her and left them at the front desk. He offered her a price for the cabinet that she had brought in and paid her for it. They then went to his office to sit down. [ 4 ] Ms. Davidson told Mr.

McLeod at that time that she was still in shock and could not figure out what had happened. She told him she thought she had a future with the company. He had always praised her apart from little things that she considered to be usual. He had always included her in the plans of the company, including the plans to move to another facility. She asked him what the problem was. He said it was not one big thing but that he wanted to change direction. When she wanted to know what change was coming that she could not be part of, he simply told her that it was the way it had to be.

He acknowledged that she had turned the office into something very professional but he refused to discuss the reasons for her termination. He gave her a cheque for eight week’s severance and a Release. She declined to accept the cheque or the Release until she got some advice. He gave her a cheque for her vacation leave and four week’s pay as well as her Record of Employment, which stated she was laid off due to shortage of work. [ 5 ] As an accounting clerk, Ms.

Davidson worked the reception; performed secretarial duties; handled the receivables, payables and payroll; cleaned the washrooms and vacuumed the floors. There were only two other employees as well as the contract person, Karen Alexander, who came in to do the cash flow, government remittances and likewise. In fact, Ms. Alexander was the bookkeeper and was responsible for oversight of all of the financials. [ 6 ] After the meeting, Ms. Davidson discovered that her RSP contribution on her final cheque was short about $300. She sent an e- mail to that effect.

The Defendant advised her that she had overpaid herself in 2012 so that was deducted from the cheque. Ms. Davidson said that something had gone wrong with the program when she was inputting information because when she reviewed the spreadsheets of everyone’s hours, the numbers were not even divisible by a $1.25. This is the amount that the company paid to the RSPs per hour worked for each employee. She apologized for the mistake. [ 7 ] In its Reply, the Defendant had alleged that Ms. Davidson was insubordinate. This was abandoned on the second day of trial before the Defendant began its case. However, Ms.

Davidson was cross-examined on it, as well as allegations of her intention to take early retirement and allegations that she had behaved badly at a charity golf tournament sponsored in part by the Defendant. In addition, the Defendant said that she breached her duty of good faith to the employer by recording hours worked while she was on vacation and by overpaying herself on the RSP contributions. [ 8 ] Ms. Davidson said that she had never been given notice of any insubordination. She agreed that they had their disagreements from time to time but that it was nothing they could not work through.

There had never been any discussion with her about not getting along with staff and she felt that she got along well with everyone. [ 9 ] Ms. Davidson does not recall ever stating that she planned to take early retirement. She gave notice of her intention to take a holiday. This was cited as one of the instances of her improper behaviour. However, Ms. Davidson said that she hired the temporary employee who was brought in to replace her while she was on that holiday. [ 10 ] With respect to the golf tournament, Ms. Davidson said that Mr. McLeod asked her to work a sponsored hole at a charity golf tournament.

Her role was to hand out water bottles and to help with the contest that was being run at the hole. One of their participants, Yves Lacasse, became upset with her that she permitted a golfer to take a second shot after he was disrupted by a loud distraction. Apparently Mr. Lacasse took the contest very seriously although there is no indication that the person who was afforded the second opportunity even won the contest. Mr. Lacasse became inordinately upset. This carried over into the dinner that followed. They had a heated conversation at which point the manager of the golf course asked Ms.

Davidson her to just walk away. As far as she was concerned that was the end of the matter. This was the summer of 2013. Certainly she never received a reprimand for it. She did tell Mr. McLeod what had happened and, from her perspective, it became a joke around the office. [ 11 ] As I have stated, the Defendant abandoned all of its grounds for termination except for breach of trust on the occasion she paid herself while she was on leave, and for her overpayment into the RSP. It is the view of the Defendant that this was not merely a mistake but deliberate. [ 12 ] Starting with the RSP contributions, Ms.

Davidson’s evidence is uncontroverted that she made the same input error with respect to every employee. There is no evidence that it was anything other than a mistake, and may have been a computer program issue. Ms. Alexander testified that it was in the process of trying to calculate her hours for her final pay period that she realized that some of the entries were in error. She went back as far as 2012 and calculated for those years. Ms. Alexander’s evidence was that in the process of doing this review with respect to only Ms. Davidson, she noted times when Ms.

Davidson had overpaid herself and underpaid herself. This evidence supports Ms. Davidson’s evidence that the overpayments were a mistake. Ms. Alexander did not do the review for all of the employees that Ms. Davidson performed. As a result, I must accept Ms. Davidson’s evidence that the mistakes were made not just

with respect to herself but to all employees. [ 13 ] As Ms. Alexander pointed out, Ms. Davidson was in a payroll position. Her work needed to be accurate. However, errors can be made. Where they are made, the employee needs to be corrected and given the opportunity to rectify her performance. That was not done in this case because the errors were not discovered until after Ms. Davidson’s employment was terminated. [ 14 ] Only in cross examination did the Defendant address evidence with respect to the difficulties Ms. Davidson posed as an employee.

Since that defence has been abandoned, the evidence drawn on cross examination is not determinative of this case and I will not consider it. [ 15 ] With respect to paying herself for vacation time as though she had been working, Ms. Davidson said that she took a couple of days off in August, 2013 for a personal matter. It was not vacation time and the time off was approved by Mr. McLeod. At the time of payment, Mr. McLeod questioned why she was giving herself a full cheque. She advised him that she was using banked overtime.

He told her this was too confusing. [ 16 ] There is no evidence from the Defendant to dispute this version of events. Ms. Alexander testified with respect to the vacation policy but not for banked overtime. Clearly Ms. Davidson was not acting in accordance with the preferred procedure of her employer, but she was corrected on the one occasion that she paid herself as though she had worked. She did not pay herself for more than she worked and there was no breach of trust involved. This does not form a basis for just cause for termination. Mitigation [ 17 ] Ms.

Davidson also prepared a spreadsheet that outlined every job she had applied for, together with all of her back-up documentation. She applied for over 60 jobs. She had interviews at only two or three of those. Her first application went out only days after she was let go. She began new employment on October 6, 2014. [ 18 ] Ms. Davidson’s income with the Defendant was $22 per hour. In addition, she had group health and dental, as well as life insurance.

She also received $1.25 per hour worked paid toward her RSP contributions. [ 19 ] The employment she received in October 6, 2014 was with a company that was growing too fast for its premises. The person doing the books at that company had three young children to look after. The site was still undeveloped with only a trailer set up. This served as their office. They were less than ideal circumstances, but Ms. Davidson was becoming concerned about not having work. In that position, she was paid $18 per hour but received no benefits and no RSP or pension plan contributions. That employer is Ground Level Excavating.

She has now retired from that employment. The Law [ 20 ] Ms. Davidson provided some cases which she said set out the range for which her notice period should have been. The cases are not applicable to her. They typically deal with people who are in managerial positions and have authority over other employees. She sought $30,504 based on eight months’ notice, less the four weeks’ severance pay she received; benefits lost calculated at $139.20 per month for five and a half months; eight months’ RSP contributions based on 174 hours per month; less her income earned in mitigation.

She also sought $1,800 punitive damages and court costs for a total of $24,869.62. [ 21 ] Ms. Robertson provided me authorities with respect to termination for cause. I find that there was no dishonesty involved in this case. I find that the RSP contribution issue was an honest mistake, although a potentially costly one to the employer. It would not have been cause for dismissal without notice. The issue with respect to her banked overtime is one which was dealt with by Mr.

McLeod at the time, for which she received no reprimand, and for which the Defendant cannot rely upon as a basis for termination for cause. [ 22 ] As I have said, the Defendant has abandoned its other allegations of termination for cause. There is no evidence before me that they would have been substantiated. Consequently, I find that Ms. Davidson was not terminated for cause and is entitled to proper notice. [ 23 ] As I noted, Ms. Davidson has overstated the value of her entitlement to notice. Ms. Robertson argued that the reasonable range of notice is three months, based upon Ms.

Davidson’s length of service, the nature of her duties, and her age. In somewhat circular reasoning, Ms. Robertson argued that because Ms. Davidson applied for 60 positions, there were positions open to her. The fact of the matter is, her mitigation amounted to employment several months after her termination at a lower pay rate and with less benefits. [ 24 ] I am satisfied that the appropriate notice period given the appropriate factors is three months. Ms. Davidson has been paid one month and is therefore entitled to pay and benefits for the remaining two months. [ 25 ] Ms.

Davidson argued that the manner of her termination entitles her to punitive damages. Ms. Robertson argued that Ms. Davidson is hurt over being terminated but that does not warrant punitive damages. Mr. McLeod did not handle the termination in the most appropriate manner calling her as he did while she was on vacation. However, he did invite her in to discuss her termination in a manner that afforded her not only dignity but privacy. As a result, I cannot see that there was anything in the manner of her termination that leads to punitive damages and I dismiss her claim in that regard.

I am not aware whether there are any formal exchanges of offers for settlement. If there are, the parties are at liberty to set this matter before me for consideration of how costs should be addressed. If no formal offers were exchanged pursuant to the rules, then Ms. Davidson shall have her reasonable costs to be assessed by the Registrar. _______________________________ S.D. Frame

Provincial Court Judge