Luhowy v Government of Nunavut, 2014 NUCJ 19

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Luhowy v Government of Nunavut, 2014 NUCJ 19 Date: 20140730 Court File: 18-10-634-CVC Registry: Iqaluit Plaintiff: George Luhowy -and- Defendant: Government of Nunavut ________________________________________________________________________ Before: The Honourable Mr. Andrew Mahar Counsel (Plaintiff): Self-represented Counsel (Defendant): A.

Silk Location Heard: Iqaluit, Nunavut Date Heard: March 17-18, 2014 Matters: Claim for Wrongful Dismissal - Rejection on Probation REASONS FOR JUDGMENT Amended Decision: An amended decision was issued on August 25, 2014; the corrections have been made to the text and the amendment is appended to this judgment. I. BACKGROUND

[ 1 ] On June 26, 2009, the Defendant sent the Plaintiff, George Luhowy, an offer of employment in writing. The position was that of Senior Financial Advisor for the Department of Finance, to commence August 7, 2009. [ 2 ] The title, job description, and the salary of $97,071.00 per year, made it clear that this position was at a high level, requiring significant experience and skill.

The responsibilities attached to the position included providing expert advice in financial management, and the preparation of financial documents, including financial statements for the Government of Nunavut. [ 3 ] The Plaintiff accepted this position and commenced employment on August 7, 2009. [ 4 ] Formal meetings were held between the Plaintiff’s supervisors and himself on November 17, 2009, December 3, 2009, and March 25, 2010, to discuss what the employer deemed to be shortfalls in the Plaintiff’s performance. [ 5 ] On May 10, 2010, the Plaintiff’s supervisor, Sanjay Grover, made a formal request to the Government of Nunavut that the Plaintiff be terminated. [ 6 ] On May 18, 2010, the Plaintiff responded to this request, alleging bad faith and an absence of grounds for dismissal. [ 7 ] On May 25, 2010, the Plaintiff was rejected on probation and his employment was terminated.

II. ISSUES [ 8 ] The Plaintiff claims that his rejection on probation was done in bad faith or was unreasonable and that his contract of employment was not specific enough in delineating possible grounds for rejection. [ 9 ] The Defendant replies that they acted in good faith, that the Plaintiff failed to perform his duties at the standard and within the timelines required by the position he occupied, and that his rejection on probation was proper. III. EVIDENCE AT TRIAL [ 10 ] The Plaintiff’s only witness at trial was himself.

As a self-represented litigant, his evidence was predictably a combination of testimony and submissions. His position was that he had completed assigned tasks as required, in proof of which he provided the court with examples of his work, which were contained in a jointly filed binder of documents. [ 11 ] The Plaintiff also drew the Court’s attention to several performance reviews, in which the same deficiencies were enumerated. His position was that they were lacking in specificity. In particular he pointed to the assertion that he lacked a basic understanding of the work that had been assigned to him.

He suggested that this assertion was inadequate because it did not specify exactly what it was that he did not understand. [ 12 ] The Plaintiff closed his case. He expected to cross-examine his supervisors during the defence case. I rejected an application by the Defendant for

summary dismissal of the Plaintiff’s claim. In so doing, I was expecting the Plaintiff to develop evidence of bad faith or unreasonableness during the cross examinations. This did not happen. [ 13 ] Susan Nichols and Sanjay Grover, who at different times supervised the Plaintiff during his employment, testified in a straightforward, pleasant and clear manner. They clarified the numerous steps that they had taken to both bring to the Plaintiff’s attention the shortfalls in his performance, as well as the assistance they attempted to provide.

[ 14 ] The primary deficiencies in question were a lack of understanding of accounting principles at the level required by the position and an inability to complete relatively basic tasks in a timely manner.

There were other less critical issues as well. [ 15 ] Cross examination by the Plaintiff of the Defendant’s witnesses consisted largely of polite arguments about the nature of the tasks in question and only served to highlight the difficulties that the witnesses had experienced in trying to communicate with the Plaintiff. [ 16 ] I found the witnesses for the Defendant to be both credible and reliable and I accept their testimony. The Plaintiff appears to be honest, but I found his testimony convoluted, internally inconsistent and hard to follow.

Where there is a disagreement in the evidence, I accept that of the Defendant witnesses. IV. ANALYSIS [ 17 ] Probationary employees are in a substantially different situation than employees under contract or those employed in permanent positions. While employers are under a duty to act fairly and in good faith, they clearly have the right to reject those employees who fail to perform their duties satisfactorily. Provided there is no evidence of bad faith or unreasonableness, there is no burden on an employer to specify every particular issue or incident of failure.

It is sufficient that the broad parameters within which the rejected employee was found unsuitable are capable of articulation. [ 18 ] It is also unnecessary, subject to the over-riding requirements of good faith and reasonableness, for contracts of employment to lay out in detail every particular issue which may result in rejection. The Plaintiff’s assertion that the contract of employment, by failing to specifically list “unsuitability” as a ground of rejection, was deficient fails for this reason. V. DECISION [ 19 ] The Defendant, through its agents Mr. Sanjay Grover and Ms.

Susan Nichols, acted in good faith and reasonably throughout the roughly 9 months during which the Plaintiff was employed. Numerous attempts were made to address clear and obvious deficiencies in the Plaintiff’s performance of his work duties, both formally and informally. The Plaintiff has failed to substantiate a claim for wrongful dismissal. He was properly rejected on probation. A. Costs [ 20 ] Counsel for the Government of Nunavut has stated that the defendant is seeking costs at the tariff level, which is estimated at approximately $10,000.

This seems entirely reasonable, given the amount of time and the logistical costs associated with defending this action, and costs against the Plaintiff are so ordered. Dated at the City of Iqaluit this 30th day of July, 2014. ____________________ Justice A. Mahar Nunavut Court of Justice

___________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Mr. Justice Mahar ___________________________________________ The names of the Plaintiff and Defendant were incorrectly reversed, and the incorrect terms used, on the frontispiece. They have been changed from: Applicant: Government of Nunavut -and- Respondent: George Luhowy to: Plaintiff: George Luhowy -and- Defendant: Government of Nunavut The names of counsel were also subsequently misidentified on the frontispiece. They have been changed from: Counsel (Applicant): A.

Silk Counsel (Respondent): Self-represented to: Counsel (Plaintiff): Self-represented Counsel (Defendant): A. Silk Please replace the amended page in your hard copy of the judgment.