Court critical of how Saskatchewan Safety Council handled firing

Council did not have cause, and it bad-mouthed the worker in front of other employees while a severance offer was still on the table
|employmentlawtoday.com

A former employee of the Saskatchewan Safety Council was awarded five months’ notice after he was dismissed without cause. The court tacked on an additional two months for the way the termination was handled.

The Saskatchewan Court of Queen’s Bench said the council had no cause to terminate Randy Poole and that his superiors treated him harshly during the termination.

Poole started working for the safety council on May 1, 1998. He signed a six-month contract as a traffic safety administrator at the pay rate of $11,000 for the term of the contract. At the end of the term, he was asked to continue in the position, with a salary increase and change of title to traffic safety co-ordinator.

In January 2003 his annual salary was $37,089.56. Poole’s duties included co-ordinating and further developing the snowmobile safety course and the annual motorcycle safety dinner, a fundraising event.

Things went relatively smoothly for Poole in the beginning. Until the end of October 2002, he reported to Harley Toupin, the executive director. In November 2002 the reporting system changed so that Poole reported to Dianne Wolbaum, director of operations.

At the time, staff morale was an issue at the council. Several staff members met at Poole’s house to discuss some concerns with management. Later, Toupin called a staff meeting during which he referred to a “staff uprising” and said “if you thought things were tough before, just wait until you see what will happen next.”

Around the same time, Poole was experiencing problems related to his personal wellness. He had trouble remembering things, a lack of energy and was feeling very down. On Nov. 22 he was diagnosed with depression, prescribed anti-depression medication and was told by his doctor to return to work on Nov. 29. At that point, Poole’s doctor then told him to take two weeks off work.

Within a few days Poole called Toupin to request a meeting away from the office. Poole, Taupin and Wolbaum met at which time he told them of his symptoms of memory lapse and lack of energy and his physician’s advice. Toupin asked Poole to hand over his office keys, which he did.

Poole goes over supervisor’s head

Subsequently, at Poole’s request, the president of the safety council met with him and reassured him that his job was not in jeopardy and that Poole should return to work on Jan. 8, 2003.

Poole said the president had previously assured staff they could come directly to him if there were any problems at work. But Poole admitted that he wouldn’t like employees going over his own head as supervisor.

A not-very-warm welcome back to the office

Poole returned to work on Jan. 8, 2003, but wasn’t given a very warm welcome. In fact, he was immediately asked to leave the office.

Within a few days, Toupin phoned and asked Poole to provide his doctor’s note that he was able to return to work. He did so. A meeting was arranged at the office for Jan. 20. The purpose of that meeting was to terminate Poole’s employment.

Toupin had hoped to get Poole to agree to a severance package because he did not want to hamper Poole’s ability to find another job. Toupin and Wolbaum met before meeting with Poole, and according to Wolbaum’s notes from that meeting she said:

“We agreed that we would offer Mr. Poole a way out and a way to save face by eliminating his position in return for him signing a confidentiality agreement if he accepted the offer that we made to him,” she said. If Poole refused the offer, then he would be fired for cause, her notes said.

At the Jan. 20 meeting, Poole was offered two months’ severance and unused holiday time in exchange for signing the confidentiality agreement. But he refused the offer and left the meeting.

That same day, Toupin called a staff meeting and said Poole had been let go because of insubordination, improprieties in the motorcycle banquet and lottery and failing to represent the safety council in a good light.

The offer made to Poole on Jan. 20 was subsequently confirmed in writing. It was still not accepted and was withdrawn towards the end of February.

Toupin’s actions “harsh”

The court was critical of the staff meeting Toupin called on Jan. 20 after Poole refused the severance offer.

“The comments made to many staff members by Mr. Toupin at a time when the offer of settlement remained open for acceptance and when (Poole) has just returned from sick leave, were an independent wrong, harsh and in contempt of (Poole’s) right to accept the outstanding offer of settlement, impugning his character and reputation and were made in bad faith,” the court said, in explaining why it awarded two months’ notice on top of the five months it said Poole was entitled to.

Safety council did not have cause: Court

The court said the safety council did not have sufficient cause to dismiss Poole without notice. The council made the following allegations of cause:

Unauthorized honorarium.

The employer said Poole’s authorization of an honorarium claimed by a snowmobile safety course instructor that was $150 higher than the contract was misconduct.

But the court said the approval of the extra $150 would not have resulted in any benefit to Poole and no dishonesty was intended.

“(Poole) was in error in approving the claim, but his error must be considered in the context of Mr. Toupin also approving the claim,” the court said. “There is no issue that, in the result, the matter was discussed and resolved in March 2002. In my view, the assertion of misconduct by the defendant respecting this incident falls far short of the burden of proof.”

Petty cash.

Showing poor judgment, Poole borrowed money occasionally from petty cash to pay for his lunch. But the petty cash was removed from his control in mid-2001 and the small shortfall was made good.

“No action was taken on the matter and, thereafter, (Poole) received commendation for the quality of his work from (the safety council) together with salary increases,” the court said. “The borrowings, while repaid, were wrong but were not severe nor fraudulent within the context of the workplace, nor did the (employer) treat them as such.”

The court said the petty cash incident was satisfactorily resolved one-and-a-half years before the termination and was not raised in the interim. Therefore, it also fell far short as a reason to dismiss with cause.

The motorcycle dinner.

The employer said Poole failed to account and report as to the proceeds of the motorcycle dinners in September 2001 and 2002.

But the court said this was not dishonest, and there was no evidence that Poole profited or intended to do so. The court said it wasn’t a serious matter and evidence failed to prove any dishonesty or misconduct by the plaintiff.

The lottery.

The employer said Poole made application, regarding the motorcycle lottery, to Saskatchewan Lottery on its behalf without proper authority.

The court said the application was made by Poole on behalf of the safety council and that it naturally arose from the motorcycle dinners and benefited the employer in terms of fundraising.

“There is no evidence that it benefited (Poole), nor does the evidence prove dishonesty or misconduct by (Poole),” the court said.

Therefore, the Saskatchewan Safety Council did not have just cause to terminate Poole’s employment, the court said. It awarded Poole five months’ notice plus an additional two months’

Wallace

damages for the way the termination was handled. (For more information on

Wallace

, see

The Wallace factor

.

For more information see:

Poole v. Saskatchewan Safety Council

, 2005 CarswellSask 471, 2005 SKQB 157 (Sask. Q.B.)

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