1999 SKQB 276 Q.B. A.D. 1998 No. 549 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: GLEN CAUDLE and LOUISVILLE SALES SERVICE INC. and MERLIN MOTORS INC. DEFENDANTS R. P. Piché for the plaintiff C. A. Sloan for the defendants FIAT LAING J. December 30, 1999 [1] The plaintiff applies for summary judgment in his claim for dismissal without just cause brought pursuant to the simplified procedure outlined in Part Forty of the Rules of Court. The defendant opposes the application and requests summary trial. [2] Rule 488 sets out the test for summary judgment. 488 On an application for summary judgment the presiding judge shall grant judgment unless, (a) the judge is unable to decide the issues in the action in the absence of cross-examination; or (b) it would be otherwise unjust to decide the issues on the motion, whereupon the judge shall order summary trial, or the trial of specified issue or issues. [3] The foregoing rule, by its use of the words “... shall grant judgment unless ...” requires the presiding judge to grant judgment except in those circumstances outlined in s. 488(a) and (b). As noted in Kostuchuk v. Bombardier Credit Ltd., 1994 CanLII 3870 (SK CA), [1994] 10 W.W.R. 257 (Sask. C.A.) per Cameron J.A. at p. 271-72, and Royal Bank of Canada v. Melnick, 1995 CanLII 6093 (SK QB), [1996] W.W.R. 752 (Sask. Q.B.) per Klebuc J. at p. 757-59 with respect to granting judgment pursuant to the summary judgment Rules, the basic question is whether there is genuine need for the trial of an action. In the context of Rule 488, there will only be such need where the judge concludes upon the material filed in the motion that s. 488(a) and/or (b) are applicable, which sections simply identify why there may be need for trial. As with the summary judgment rules, the defendant bears the burden of demonstrating there is genuine need for trial. (Kostuchuk v. Bombardier Credit Ltd., supra per Cameron J.A. at p. 273) [4] It follows from the foregoing that the test is not whether there is contradictory evidence in the affidavit material filed, but rather, whether despite the contradictory evidence, the issue(s) can be decided in the absence of cross-examination and it would not otherwise be unjust to do so. One way that contradictory evidence can be decided in the absence of cross-examination, is where for the purposes of the application the Court accepts the defendant’s evidence wherever it conflicts with that of the plaintiff and still concludes the plaintiff is entitled to judgment. The analogy is the law related to the striking of pleading for disclosing no reasonable cause of action or defence (Rule 173(a)) where the Court must assume any allegation of fact to be true. If the Court can assume the defendant’s evidence is true and still grant summary judgment, there is no genuine need for trial. Such is the case in this matter. [5] The plaintiff commenced employment with the defendant’s predecessor, Merlin Motors Ltd., on February 18, 1991 as bodyshop foreman after working in the bodyshop industry for various employers over the previous ten years. At some point in his employment, the date of which is not in evidence, he also acquired the title of assistant manager of the bodyshop. On January 1, 1997, the defendant, Louisville Sales Service Inc. purchased the bodyshop business from Merlin as result of an internal corporate reorganization. Employees were advised that all employee benefits offered by Merlin would be continued, and there is no issue that the plaintiff’s employment for the purposes of his claim is continuous from February 18, 1991. There is no suggestion by the employer in the affidavit material filed by it that there were any problems with the plaintiff’s performance prior to May, 1997. [6] In early May, 1997, Cecil Dust, the bodyshop manager, became ill and was off work large portion of the time up until the plaintiff’s notice of termination dated July 30, 1997. The work load of Mr. Dust fell to the plaintiff in addition to his duties as bodyshop foreman and assistant manager. It was his performance in this period between early May and July 30, 1997 which resulted in his termination. [7] The defendant’s evidence in support of the plaintiff’s termination for just cause is an affidavit by Debbie Anderson who, in 1997, was the office manager for the defendant and more recently is the quality manager. The relevant paragraphs in her affidavit are as follows: 5. Beginning in approximately early May of 1997, Cecil Dust, the Bodyshop Foreman, became ill and was off work for large portion of the time for the next three months undergoing medical treatment. Most of Cecil Dust’s duties were taken over by Glen Caudle, and assisted with some of the work assignments. 6. It was during the time of Mr. Dust’s illness, that Glen Caudle became extremely difficult to work with. Glen Caudle would repeatedly complain about having to undertake Mr. Dust’s duties in his absence, and yet also complain that was taking too much authority by making work assignments in the shop. 7. Glen Caudle would complain about Mr. Dust to myself and other junior employees and say that Mr. Dust should be reprimanded for his absences and work performance. 8. Glen Caudle criticized Mr. Dust and Louisville in front of customers on at least four or five occasions in my presence. On one particular occasion, customer, Ray Conner, brought in vehicle for repairs. Cecil Dust had earlier advised Mr. Conner that it would take approximately ten days to repair the vehicle. Mr. Dust was not in when Mr. Conner brought the vehicle in to the shop. When Mr. Conner asked about the ten days to repair, Glen Caudle responded “oh sure, he’s (Cecil Dust) going to make me be the heavy and tell you it can’t be done. There’s no way we can have it done in ten days. I’ve got to do everything around here.” 9. During the period of Mr. Dust’s illness, Louisville had Quality Manager by the name of Corey Rissling. When Corey Rissling would ask questions of Glen Caudle, Glen Caudle would simply ignore him and walk away without saying anything. Glen Caudle told me several times that he thought that Louisville paid Corey too much when he did not know his job. 10. In approximately mid July, 1997, during work hours, noticed Glen Caudle pull his personal vehicle into the shop’s car wash, and that Deven Amendt was cleaning the vehicle. When asked him what he was doing, Deven responded, “I’m just doing what I’m told.” 11. few days after Deven Amendt cleaned Glen Caudle’s vehicle, Gary Bews, the President of Merlin Motors Inc., stopped by my office and asked how things were going. responded that they were not good, and thereafter, met with Gary Bews and Reid Bews to discussed [sic] the atmosphere in the shop and Glen Caudle’s behaviour towards Cecil Dust, the junior employees, and the customers. We discussed the incidents have referred to above, and at the time, prepared handwritten summary of Glen Caudle’s behaviour which summary is attached hereto and marked as Exhibit “A”. [8] Exhibit “A” referred to in paragraph 11 states as follows: Ray Conner cutting down Cecils time frame to customer talking to guys in back how mad he is that Cecil’s gone on holidays he thinks he shouldn’t of [sic] taken any telling customers that he is doing everything around here telling the guys how mad he is for me giving out jobs making Deven clean dog poop out of his personal vehicle on company time telling Deven how he wants to repremand [sic] Cecil not being cooperative with Corey i.e. if he asks question he just walks out the door without saying anything telling guys out back he doesn’t like Corey. getting mad because Cecil wanted to hire Lorne but Glen didn’t want him so Cecil didn’t, Glen said he should hire someone without any bodyshop knowledge and when Cecil does that complain that Corey doesn’t know anything. [9] The defendant also filed an affidavit by Leon Lohman who is the paint foreman for the defendant. The operative portions of his affidavit are: 2. As Paint Foreman, work closely with the technicians in the Bodyshop. was informed by various employees in the Bodyshop, and verily believe the same to be true, that Glen Caudle was not well liked by the employees in the Bodyshop, particularly those in the shop itself. also believe this from my own observations of Mr. Caudle’s interactions with the staff. This situation worsened significantly during the time when Cecil Dust was away from the Shop due to illness beginning in approximately May of 1997. 3. Beginning in approximately May of 1997, noticed that Glen Caudle’s attitude deteriorated and he became quite negative about his job and Louisville. [10] third affidavit of Deven Amendt, the car washer at the time, was filed by the defendant. In paragraphs and of this affidavit he states: 3. In approximately mid July, 1997, during work hours, Glen Caudle requested that clean his personal vehicle as it was soiled with dog feces. cleaned his vehicle as requested. 4. recall that after cleaning Mr. Caudle’s vehicle, Debbie Anderson, the then office manager, asked what was doing, and responded, “I’m just doing what I’m told.” [11] The final affidavit filed by the defendant is that of Reid Bews, president of the defendant, who received all of the information on which he based his decision to terminate Mr. Caudle from Ms. Anderson. He states in part in paragraph of his affidavit: 2. In or about mid July, 1997, met with Debbie Anderson, Louisville’s Quality Manager. At that time, Ms. Anderson expressed to me her concerns respecting Glen Caudle, and the effect of his then recent behaviour on the morale of the staff in the Bodyshop and customers. It will be noted from the foregoing that Mr. Bews refers to “recent” behaviour, and makes reference to that behaviour only with respect to its effect on “... the morale of the staff in the Bodyshop and customers.” [12] At paragraphs to 10 Mr. Bews states as follows: 8. Shortly after my conversation with Ms. Anderson, met with Cecil Dust. This meeting took place few days after my conversation with Ms. Anderson as Mr. Dust was away from work. 9. During this meeting, explained to Mr. Dust my conversation with Ms. Anderson and that my inclination was to terminate Mr. Caudle’s employment as Louisville could not retain Bodyshop Foreman who was critical of the Bodyshop Manager and Louisville to both staff and customers. explained to Mr. Dust that believed Mr. Caudle’s behaviour was detrimental to the company’s interests both in terms of employee and customer relations. did not wish to terminate Mr. Caudle’s employment without first obtained [sic] Mr. Dust’s input. 10. At the conclusion of our meeting, both Mr. Dust and agreed, that Mr. Caudle’s employment should be terminated as he was harming both the staff and customers at Louisville. As result of Mr. Caudle’s behaviour, had lost confidence and trust in him. [13] On July 30, 1997, Mr. Bews met with the plaintiff in his office at which time he had written notice of termination dated July 30, 1997 prepared. In paragraphs 11 and 12 he states: 11. On July 30, 1997, met with Mr. Caudle in my office at Louisville. No one else was present at this meeting. explained to Mr. Caudle my concerns respecting his behaviour as they had been related to me by Ms. Anderson and Mr. Dust, and gave Mr. Caudle an opportunity to respond. Mr. Caudle did not deny any of the incidents, and admitted that he had told others at Louisville that he wanted Mr. Dust reprimanded for his absences. 12. At the conclusion of our meeting, and in light of the fact that Mr. Caudle had no dispute with any of the concerns that expressed to him, offered him the opportunity to resign which he refused. Mr. Bews then handed the plaintiff notice of termination effective six weeks hence. He stated he concluded it would be easier for Mr. Caudle to find new employment while still employed. Mr. Caudle was granted time off work with full pay until September 11, 1997. [14] It should be stated that the plaintiff does not agree with Mr. Bews’ description of the meeting or what was said by him during the meeting, but will not review the same because for the purposes of this application am assuming everything that Mr. Bews states is correct. [15] The position of the defendant is that the plaintiff’s behaviour as reported after the fact by Debbie Anderson, amounted to inexcusable serious misconduct which justified it in terminating the plaintiff’s employment without resort to any warning or any form of progressive discipline. The position of the plaintiff is that if everything the defendant states is accepted, those facts do not individually or collectively amount to serious misconduct, and did not cause any actual prejudice to the employer’s interests. [16] As has been noted in numerous decisions, whether an employer is justified in summarily dismissing an employee, is ultimately question of fact. Previous case law can be helpful when the facts in the previous case bear some resemblance to the facts in the case under consideration, but general statements of the law from cases where the facts bear no resemblance to the facts under consideration are of little or no assistance. It is for this reason that text writers on the law of dismissal categorize types of misconduct and thereafter review case law within that category. D. Harris, Wrongful Dismissal, looseleaf ed., 1999 Release (Toronto: Carswell), categorizes the misconduct alleged by the defendant in this case, at para. 3.23, as “Personality Conflict and Attitudinal Problems”. [17] As to what may constitute just cause in any particular fact situation, accept the definition of Saunders J. in Leung v. Doppler Industries Inc. (1995), 1995 CanLII 2530 (BC SC), 10 C.C.E.L. (2d) 147 (B.C. S.C.), aff’d (1997) 1997 CanLII 3435 (BC CA), 27 C.C.E.L. (2d) 285 (B.C. C.A.), which Harris, supra, at p. 3-54 describes as definition in practical and functional terms. At p. 152 Saunders J. stated: Just cause is conduct on the part of the employee incompatible with his or her duties, conduct which goes to the root of the contract with the result that the employment relationship is too fractured to expect the employer to provide second chance. [18] In this case, assuming all of the defendant’s evidence is true, have to agree with counsel for the plaintiff who characterized the plaintiff’s conduct as “griping”, whether it related to Mr. Dust’s absences, Mr. Dust’s estimates of time to perform work on Mr. Conner’s vehicle, or his comments on Mr. Rissling’s lack of knowledge. The one incident that does not relate to griping; namely, requesting the car washer, whose job it is to clean vehicles, to also clean his on company time, as an isolated incident, has to be regarded as minor infraction. There is no suggestion in the evidence that the car washer objected to doing so or lacked the time to do so. [19] The plaintiff’s griping occurred after it fell to him to perform the duties of the bodyshop manager in addition to his own duties as bodyshop foreman and assistant manager. There is no suggestion in the material that the plaintiff was asked if he was prepared to assume both jobs, or if he felt qualified to do so. One does not have to be psychologist to infer that performing both duties placed additional stress on the plaintiff which he had not previously been exposed to. His unblemished record for the previous six years confirms this. The plaintiff’s vocal complaining of the matters referred to during the course of attempting to perform both functions indicates he was not necessarily prepared for the role which was thrust upon him. So in the end result, the plaintiff was not terminated because of poor job performance in performing his contractual duties as bodyshop foreman and assistant manager, but because of his alleged poor performance in doing the job normally assigned to two persons. [20] The employer has the right to expect that employees will not disparage their immediate supervisors or other employees in the course of their employment, and certainly not to clients or customers of the employer. However, griping is not exactly unusual in a work place, and the type of conduct alleged against the plaintiff would not justify dismissal the first time it came to the employer’s attention, if he had been guilty of such conduct while performing only his own job function. In my brief review of the case law, it seems uniform that one or more warnings to an employee must be given before it can be said such activity “fractures” the employment relationship. Where dismissal does result after one or more warnings, the category of misconduct can be said to change from one of poor attitude to one of disobedience or insubordination. [21] In this case the alleged misconduct of the plaintiff would have justified him being warned to not continue such conduct, but it falls far short of conduct justifying cause for termination. The plaintiff is entitled to enter judgment for the damages which flow from this dismissal without just cause as set out hereafter. THE PERIOD OF REASONABLE NOTICE [22] As noted above, the plaintiff did receive six weeks’ notice of his termination or pay in lieu thereof (it is not altogether clear whether he worked at all during this period). The defendant did not seriously argue, despite its pleading to this effect, that six weeks’ notice is adequate for person terminated from junior managerial position after period of six and one-half years of employment. There is no issue of lack of mitigation on the part of the plaintiff as he did accept job with another autobody shop effect November 1, 1997 at much lower rate of pay. [23] At the time of his dismissal, the plaintiff was 35 years old and earned approximately $55,000 per annum in his previous year of employment made up of salary and bonuses paid on percentage of the profit earned in the bodyshop. In this fiat I intend to set only the amount of notice the plaintiff was entitled to, and leave it to the parties to work out the damages the plaintiff is entitled to for the notice period based on his income and value of benefits for the previous 12-month period, less the six weeks’ pay he received, and less the wages and the value of the benefits he has received in his new employment during the notice period. If the parties are not able to agree, reserve jurisdiction to have the matter brought back before me for further evidence and decision. [24] The remarks of McRuer, C.J.H.C. in Bardal v. The Globe and Mail Ltd., 1960 CanLII 294 (ON SC), [1960] 24 D.L.R. (2nd) 140 (Ont. H.C.) at p. 145, are generally accepted as itemizing most, if not all of the considerations to be taken into account in any one case when determining an appropriate notice period for an employee. McRuer, C.J.H.C. stated: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant. [25] In the case of a person in the plaintiff’s position, who occupied a junior managerial position in a very specific industry, the notice period selected should reflect that management positions are fewer in number than non-management positions, and that there is a considerable wage difference between a management position and a non-management one. [26] In this case the plaintiff was able to obtain employment within approximately two and one-half months of the end of the notice period given to him by the employer at wage considerably below what he had earned with the defendant. The evidence establishes the plaintiff applied to numerous autobody businesses prior to accepting the employment he did and was not successful in obtaining an equivalent position at an equivalent salary. Plaintiff’s counsel put forward a realistic assessment of an appropriate notice period of seven months. Taking all factors into account, I consider this is an appropriate notice period to which the plaintiff was entitled. [27] The plaintiff’s damages are to be calculated in the manner set out in the foregoing. [28] The plaintiff is entitled to taxable costs.
FIAT. The plaintiff applied for summary judgment in his claim for dismissal without just cause. The plaintiff was initially hired as body shop foreman but additionally acquired the title of assistant manager. When the body shop manager became ill that work load also fell to the plaintiff. It was during this period that the performance of the plaintiff, described by the defendant as serious misconduct, resulted in his termination. There was no issue of a lack of mitigation as the plaintiff accepted a job with another autobody shop but at a much lower rate of pay. The action was brought pursuant to the simplified procedure outlined in Part 40 of the Rules of Court. HELD: Damages were to be calculated by the parties for the 7 month notice period based on his income and value of benefits over the previous year, less the 6 weeks pay received, and less wages and benefits received from his new employment. Jurisdiction was reserved to hear further evidence should the parties not reach agreement. 1)By using the words 'shall grant judgment unless', Rule 488 requires the presiding judge to grant judgment except in the circumstances outlined in s.488(a)and(b). The test is not whether there is contradictory evidence in the affidavits but whether despite the contradictory evidence the issue(s) can be decided in the absence of cross-examination and it would be otherwise unjust to do so. If the court can assume the defendant's evidence is true and still grant summary judgment there is no genuine need for a trial. 2)As noted in numerous decisions, whether an employer is justified in summarily dismissing an employee is ultimately a question of fact. The plaintiff was not terminated because of poor job performance in performing his contractual duties as foreman and manager but because of his alleged poor performance in doing the job normally assigned to two persons. The employer has the right to expect that employees will not disparage their immediate supervisors or other employees in the course of their employment and certainly not to clients or customers of the employer. The type of conduct here would not justify dismissal the first time it came to the employer's attention if the employee had been guilty of such conduct while performing only his own job function. 'Griping' is not uncommon in the workplace. The case law seems uniform that one or more warnings to an employee must be given before it can be said such activity 'fractures the employment relationship'. The category of misconduct can be said to change from poor attitude to disobedience or insubordination where dismissal results after one or more warnings. 3)The plaintiff was entitled to 7 months notice to reflect the fact that junior management positions are fewer in number and the considerable wage difference between management and non- management positions.  4)The plaintiff was entitled to taxable costs.