Water worker stripped of duties, given working notice

Small Saskatchewan community gave water treatment worker the boot when it discovered he wasn't doing the job properly, court says the municipal council handled the situation properly
|employmentlawtoday.com

A small Saskatchewan town did the right thing when it scaled back one of its worker’s duties after it discovered he was not managing water treatment properly, a court has ruled.

Missinipe, a small hamlet in the northern part of the province with a population of about 40, hired Robert Kalyn on April 28, 1998, as its water treatment plant operator and town foreman. The employment contract was for an indefinite term, and the hamlet arranged for special training for Kalyn in the water treatment system through SaskWater.

Over the next three years, Kalyn carried on his duties handling the water treatment system, sewage system, fire department and town maintenance.

Compassionate care leave granted, mayor finds problems with water system

On April 12, 2001, Kalyn was granted compassionate leave to be with his dying mother. He returned on April 22. In his absence the hamlet’s mayor, Lewis Layton, agreed to handle the water treatment plant. Layton was qualified in operating water and sewage systems.

During that 10-day period, Layton found many problems at the plant that caused grave concern about the safety of the water supply and the operation of the sewage equipment. The turbidimeter, used to measure the impurities in the water and automatically adjust the feed rate of chemicals to produce good quality water, was filthy. The flow to the turbidimeter was off and impurities in the water could not be measured.

That meant chemicals could not be appropriately fed to the water system. Also, one of the sewage pumps was not functioning properly.

The mayor and the council met to discuss the situation. They told Kalyn by letter of the problems upon his return to work.

Kalyn given working notice, stripped of some duties

At the next municipal council meeting, on April 26, 2001, the council decided to terminate Kalyn’s employment. It gave him three-and-a-half months’ notice that his employment would come to an end on Aug. 10, 2001. In the meantime, he was stripped of his responsibility for the water system and sewage plant.

He was to be paid the same salary, but his work was restricted to town maintenance and fire department duties.

Kalyn didn’t show up for work between April 28 and May 8. On May 7, the council sent him a letter, advising him to return to work. If he did not, he would be terminated for cause based on abandonment of his duties.

Kalyn returned to work for a couple of hours on May 9 and May 10. By May 21, Missinipe’s council discovered that Kalyn had left the community and was living in Prince Albert, Sask., about 330 kilometres to the south.

Missinipe paid him his salary up to and including May 15. It took the position Kalyn had withdrawn his services and it was no longer required to pay him a salary.

Kalyn claims constructive dismissal, Missinipe begs to differ

Kalyn’s counsel said he was constructively dismissed when Missinipe reduced the scope of his duties on April 26. Therefore, he was entitled to leave the position and was also entitled to pay in lieu of reasonable notice.

Missinipe disagreed. It said council was required to maintain the integrity of the water and sewage systems by removing Kalyn from his duties associated with its operation. It said he had abandoned his job and was entitled to nothing more than he had already been paid.

The court’s decision

Justice Rothery said there was no doubt the stripping of duties amounted to a demotion. Layton took over all duties associated with the water and sewage systems, while Kalyn was left with maintenance work and responsibility for the fire department.

But the court said Missinipe had no choice but to remove these responsibilities from Kalyn.

“The health of its citizens could not be compromised,” said Justice Rothery of the Saskatchewan Court of Queen’s Bench. “Safe water and a proper sewage system is expected by the citizens, and so it should be.”

The court said the council acted properly in relieving Kalyn of his duties, but not cutting his pay.

“Missinipe provided Kalyn with the opportunity to remain employed for three-and-a-half months, with reduced duties and with full pay,” said Justice Rothery. “Kalyn abandoned his employment and moved away.”

The Misfud decision

The court said it was not asked to determine whether or not the dismissal was for just cause, but Justice Rothery said this case could be decided on Kalyn’s failure to mitigate his damages.

Justice Rothery said this is a case where the ratio outlined in

Misfud v. MacMillan Bathurst Inc.

was applicable. In that case the Supreme Court said:

“The fact that the transfer to a new position may constitute in law a constructive dismissal does not eliminate the obligation of the employee to look at the new position offered and evaluate it as a means of mitigating damages. In all cases, comparison should be made to the contractual entitlement of the employer to give reasonable notice and leave the employee in his current position while a search is made for alternative employment. Where the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious … it is reasonable to expect the employee to accept the position offered in mitigation of damages during a reasonable notice period, or until he finds acceptable employment elsewhere.”

Justice Rothery pointed out that Kalyn’s salary was the same.

“The work was not demeaning, and the personal relationships were not acrimonious,” said Justice Rothery. “I find that it was incumbent upon Kalyn to accept the position offered for the reasonable notice period.”

Because Kalyn had been on the job for three years, the court said Missinipe’s notice period of three-and-a-half months was appropriate.

For more information see:

• Kalyn v. Northern Hamlet of Missinipe, 2005 CarswellSask 849, 2005 SKQB 533 (Sask. Q.B.)

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