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Employer being deceptive leads to bad faith damages

Judges are human beings and they don’t always get things right, but my experience is they mostly do. It’s surprising how many people hope that a judge will be gullible enough to be easily fooled.
 
A gentleman we will call Daniel started working as a salesman for a transport trailer rental company in 1998. By 2004, he was promoted to the position of Branch Manager.
 
Despite the fact that the vice president of operations promoted Daniel to this position, the two never seemed to quite get along.
 
Because the employer primarily operated in the United States, it was required by American law to have a code of ethics and a way in which employees could file confidential complaints if they had concerns about unethical conduct in the workplace.
 
On two occasions, Daniel filed complaints with the ethics committee about his boss. In both instances, the ethics committee decided the complaints were about business matters and not issues of ethics.
 
After the second complaint, the human resource manager told Daniel’s boss that Daniel had some concerns about how long it was taking the boss to respond to discount pricing requests submitted by Daniel.
 
Daniel felt the boss was discriminating against him as he would often delay providing pricing and Daniel would lose accounts to competitors as a result.
 
A week later, the boss did Daniel’s annual performance review, took away his largest account and told him that he was going to meet with him every 60 days to coach him on getting the branch’s revenue up.
 
A few months later, in May of 2005, Daniel’s boss invited him to a meeting. More concerns have been relayed by Daniel to his boss through the human resource manager about the delay in providing pricing. Daniel gave evidence at trial that in the May meeting, his boss told him that he should have come to the boss and not to the human resource manager with his concerns. Daniel said the boss told him that he had a bull’s eye on his back and the boss had the gun.
 
Daniel claimed that the boss called him as ‘f***ing lowlife’ and told him he was fired. Then Daniel said the boss continued to swear at him and demean him with insults. Daniel stated that since he had already been fired he got sick of being abused and got up and walked out.
 
The boss followed him to the parking lot and Daniel gave him his keys to the office. Daniel said that after he returned the company keys, the boss said, “If you say anything about me, I’m going to kick the f***ing guts out of you.” Daniel claimed that as he was getting into the car, his boss said, “Hey Daniel – you quit, I didn’t fire you.”
 
Daniel gave further evidence that as soon as he got home he called the human resource manager and told him exactly what had happened.
 
The boss’s version of events was completely different. The boss said that he never swore or demeaned Daniel but simply tried to talk to him about communication issues. Daniel didn’t say much other than, “I’m not going to quit but you can fire me” and then got up and walked out. The boss said he followed Daniel to the parking lot to ask him if he was quitting but Daniel wouldn’t respond. Daniel gave him his keys and drove away. The boss said that he immediately phoned the human resource manager and told him what had happened.
 
When the human resource manager gave evidence at trial, he could remember in detail conversations and events surrounding the complaints Daniel had made about his boss. He remembered the specifics of the call made by Daniel’s boss immediately after the May, 2005, meeting. When asked, however, if he remembered Daniel calling him right after that meeting with his version of events, he indicated that he could not remember whether he received a call from Daniel or not and if he did, what Daniel said. So, he could remember everything he needed to remember but the call from Daniel.
 
It never ceases to amaze me, and it must constantly amaze judges, how stupid people hope they are. The judge in this case found the human resource manager’s sudden amnesia about Daniel’s phone call extremely suspicious given his excellent recollection of everything else involved in the case.
 
Sometimes there are situations where people simply don’t recall something and they’re being honest in admitting that. When the thing they don’t recall, however, is a fairly important element of the case and they can remember all the evidence that works to their favour, they might as well save their breath before uttering the words, “I don’t recall.” Saying those words in these circumstances was just as if the human resource manager had said, “Yes, he made the call and said all those things but I want to keep my job and am not brave enough to completely perjure myself so I’m going with a sudden loss of memory.”
 
After 7 years of employment, some of it in a management position, Daniel was awarded 9 months’ pay in lieu of notice for his termination without just cause. The judge also added on an extra month’s pay in lieu of notice to compensate for the bad faith way in which Daniel was demeaned and abused during the termination process. It didn’t help that the employer refused to provide Daniel with a letter of reference to assist him in his job search efforts.
 
Given that the judge found that Daniel’s version of the termination meeting was accurate, I am surprised that he only got one month’s pay in lieu of notice and not 3 or 4 as a result of the bad faith treatment. Not only did Daniel get to be sworn at and threatened, the employer then turned around and tried to claim he quit.
 
Daniel’s boss did not have the authority to fire Daniel and clearly decided to cover his tracks as soon as he realized he would be in hot water. Once that die was cast, the wagons were circled and the human resource manager stupidly thought he could save the company by misleading the court. Somebody should send this decision to the company’s ethics committee.
 
As published in the Hamilton Spectator, May 10, 2008
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com