Salmon farm supervisor fired for taking company truck, not completing work

New Brunswick court upholds termination, says site manager's actions were dishonest and insubordinate
|employmentlawtoday.com

The owner of a salmon farm was justified in firing a supervisor who took a company truck despite being told not to, the New Brunswick Court of Queen’s Bench has ruled.

The case involved Progressive Salmon Ltd., a salmon growing operation that grows fish for Heritage Salmon on Grand Manan Island. Progressive Salmon leases the site from Heritage and use their equipment. The company has six cages and about 500,000 fish.

Progressive Salmon is owned by Ann and Bradley Small. They have four employees: a site manager who reports to them and three other workers who do maintenance and feeding and report to the site manager.

In March 2002 the company hired Christopher Kelley as its site manager. Kelley reported to Ann Small, but ran the operation with very little supervision. His salary was $1,000 per week.

On Aug. 27, 2004, while on vacation in Newfoundland, Kelley phoned Small after receiving a call from his wife that Small was upset. Small was upset and told Kelley he had been fired.

The dismissal letter

When he returned to New Brunswick on Aug. 31, Kelley phoned Small to find out what was going on. On Sept. 2 they met, at which time she gave him is record of employment and a letter of dismissal.

The letter, dated Aug. 23, 2004, stated:

Dear Mr. Kelley,

We regret to inform you that effectively, your services are no longer required. Please note the reasons for this decision:

1) You informed me that your wife was going to use the company truck while you were away. I stated that your wife could not use the truck. The reasons (sic) for this was one, it was needed by the crew and secondly, she was not insured to drive it therefore it was against the law. Yet you took it upon yourself to inform the crew she was to have it anyway. This left me in a very difficult situation when I had to retrieve the key from your wife at her place of work.

2) The work on the boat that was to be completed was not done, yet you informed us it was, subsequently we had to hire a person to come and sand the steel, this cost the company unnecessary costs.

It is obvious from the above reasons that you no longer respect the working relationship that is required to do the job that is expected.

Sincerely,

Ann Small
Co-owner

Kelley launched an action for wrongful dismissal. The New Brunswick Court of Queen’s Bench, citing the 1997 ruling of

McNaughton v. Sears Canada Inc.

, confirmed that it’s clear the employer has the onus of proving it had cause to dismiss the employee.

In that case the court said: “The examination of the reasons for dismissal must be made in light of the onus placed on the employer to show that there was willful disobedience of the employee to a lawful and reasonable policy or order, and that this act of disobedience involved a matter of importance that resulted in the destruction of the relationship between the employer and employee.”

Therefore, the onus was on Progressive Salmon to prove it had just cause to fire Kelley. The court ruled it had such cause for the following reasons:

The company truck

Kelley told Small before he went on vacation that he was leaving the company truck with his wife so she could take it to work while he was away because he was taking the family vehicle on his trip.

Small clearly told Kelley not to do that because the truck was needed for company work, including taking garbage to the dump.

Following that conversation, Kelley made arrangements with another employee to use his own truck to take garbage to the dump and arranged for another employee to take the company truck to his wife while he was away.

The court said such conduct amounted to “both dishonesty and insubordination.”

“It also involved the misuse of his position of authority by instructing the employees he supervised to become complicit in his dishonest and insubordinate behaviour,” said Justice William Grant. “It undermined Mrs. Small’s authority with the other employees by leaving the impression that (Kelley) was the ‘real boss’ of the company and it placed Mrs. Small in an uncomfortable and embarrassing position when she was forced to approach Mrs. Kelley at her place of work and demand return of the truck.”

The work on the boat

Before Kelley left for vacation, Small asked him if had completed all of his work on the new boat that had been purchased by Progressive Salmon three to four months earlier. The boat, the

Storm Rider

, was having new equipment installed and the Smalls were anxious to get it operating.

Kelley’s work included painting and he said he could not do it until all the equipment had been installed on the boat. Small said that since the equipment was being installed on the front of the boat, and Kelley was painting the rear, he could have done the painting before he left for vacation without interfering with those installations.

Small said Kelley told her his work was done, but when he left she found out otherwise and had her son complete the work.

Justice Grant said Small’s testimony was clear and credible.

“I further find that in respect to the painting of the boat Mr. Kelley was both dishonest and disobedient with his employer,” he said.

The court’s decision: A case of trust

The court said Kelley held a position of authority with Progressive Salmon, he worked with little supervision and the company relied heavily on him.

“He was in a position of responsibility which carried with it a duty to be trustworthy,” said Justice Grant. “He violated that trust on at least two occasions and with respect to the truck he both undermined his employer’s authority in the eyes of other employees and abused his authority. While these are only two incidents they cannot be minimized as being isolated in my opinion. They are both serious, the moreso because of Mr. Kelley’s position with the company.”

The court said Kelley’s misconduct irreparably destroyed the employment relationship and it ruled Progressive Salmon had just cause to fire him. It also ordered Kelley to pay costs to Progressive Salmon in the amount of $300.

For more information see:

Kelley v. Progressive Salmon Ltd.

, 2005 CarswellNB 362, 2005 NBQB 223 (N.B. Q.B.)

McNaughton v. Sears Canada Inc.

, 1997 CarswellNB 76, [1997] N.B.J. No. 79, 144 D.L.R. (4th) 47, 186 N.B.R. (2d) 384, 476 A.P.R. 384 (N.B. C.A.)

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