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MISTAKE CAN BE VIEWED AS BAD FAITH

A woman we will call Lucinda worked for 32 years on the assembly line in a car plant.  Her job was to do the final tightening on six bolts on a door locking system.  The bolts were initially tightened by another worker with an air gun.  Her job was to make the final turn with her torque wrench on all six bolts.
 
Two months before Lucinda’s termination, she had received a very positive performance review. One day, a co-worker reported to Lucinda’s supervisor that she had seen a number of cars go by where Lucinda did not even take her torque wrench out of her pocket to tighten the bolts.  Upon hearing this, Lucinda’s supervisor decided to watch her performance.  He claims to have seen three cars go by without Lucinda attempting to tighten any bolts.  Lucinda would still, however, mark the car to indicate that she had in fact tightened the bolts.  He removed Lucinda from the line before the end of the shift.  When all the bolts on all the cars that were produced that shift were checked, only one was found not to be sufficiently tight.
 
When Lucinda was confronted with these allegations the next day, she denied that she had failed to tighten any bolts.  Lucinda was terminated. 
 
The car plant was not unionized and the employer had a peer review system for employees to appeal their terminations.  Six co-workers from an opposite shift and one management person reviewed Lucinda’s case, listened to what she had to say, and refused to reinstate her to her job. 
 
Lucinda sued for wrongful dismissal.  The trial judge decided that since all the bolts but one on the shift was sufficiently tight, and the one loose bolt may have been done after Lucinda was sent home, Lucinda’s co-worker and supervisor must be lying about her failing to use her torque wrench.
 
Some of the evidence the judge heard was that the only way to tighten the bolts to the right level was with the torque wrench.  Other evidence the judge heard was that the torque wrench was just used to make sure the bolts were tight enough.  The judge chose to believe the evidence that only the torque wrench could sufficiently tighten the bolts and found that Lucinda must have been doing her job since all the bolts on that shift were tight enough except one.
 
Despite the fact that Lucinda was in a non-management position, she was found to be entitled to 4 months’ reasonable notice after her 32 years of service.  The judge also awarded an extra 2 months’ pay in lieu of notice as he found that the employer had acted in bad faith because of its investigation process.  The judge found that the employer had failed to properly review the evidence of Lucinda’s co-worker who had first raised a complaint against her and that it had failed to adequately check whether the bolts Lucinda had been responsible for were sufficiently tightened. 
 

Our justice system is for the most part a very good one.  This case is a good example of the fact, however, that anything can happen at trial.  The employer walks into the courtroom with two eyewitnesses who will swear under oath that Lucinda was not using her torque wrench and no obvious reason for why they should lie about it.  Because of the confusion about whether only the torque wrench can sufficiently tighten the bolts or whether the air gun used first might do it, the employer loses. 
 
As an employment law practitioner who represents both employees and employers, the judge’s finding that 2 months extra notice was warranted because of bad faith behaviour by the employer is more troublesome.  It has always been my understanding that bad faith behaviour included some maliciousness.  In this case, the judge appeared to decide that since the employer’s investigation process was not flawless, the employer was guilty of bad faith.  I would not usually call making a mistake bad faith. 
 
Employers should not be too concerned, however.  One case does not make the law.  The majority of decisions indicate that the employer must act in a mean-spirited or malicious manner in order for a terminated employee’s notice period to be extended as a result of bad faith dealings. Just because a judge does not agree with an employer that just cause existed for a termination does not mean that bad faith damages should be awarded.
 
As published in the Hamilton Spectator, June 2, 2003
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com