By Robert Smithson

One of the riskier strategies employers will engage in is a mischaracterization of the reasons for dismissal of an employee.  When that extends to attempting to mislead a judge about those reasons, the strategy can become a very costly error.

Tyler Marchen was an apprentice automobile collision repair journeymen working for Dams Ford Lincoln Sales Ltd. in Surrey, British Columbia.  The apprenticeship agreement between Marchen and Dams was for a four-year term.

Marchen was roughly halfway through his apprenticeship when he was abruptly fired from his job.  Until that point, Marchen had been considered by his employer to be a good employee. 

When he asked why his employment was being terminated, he was told, simply, that it was “not up for discussion”.  Dams indicated on Marchen’s Record of Employment, however, that he had been “dismissed”.

Marchen was emotionally devastated by the termination.  He was unable to locate another automobile dealer willing to continue his apprenticeship.  Eventually, he relocated to Kelowna to find work but never did find a new apprenticeship sponsor.

Around the time of the termination of Marchen’s employment, Dams made comments suggesting the dismissal was due to a police matter.  There was no such matter relating to Marchen although his brother (who was also an employee) had been implicated in some thefts from the dealership.  Dams told Marchen’s father that Marchen had been terminated because of concerns he was involved in the brother’s criminal activities.

After Marchen commenced an action against Dams for wrongful dismissal damages, however, Dams’ story about the reasons for termination began to change.  For instance, Dams indicated to an E.I. representative that Marchen was terminated due to a downsizing of the dealership’s body shop operation.

At the trial of the matter, Dams’ representatives denied that Marchen was terminated due to the criminal activities of his brother.  They stuck to their story that the downsizing of the body shop operation was the true reason.

Nonetheless, the Court found that Marchen’s termination arose from Dams’ unfounded suspicion that he was involved in his brother’s activities.  There was no evidence whatsoever to support Dams’ suspicion.  

The Court determined that the apprenticeship agreement between Dams and Marchen was a fixed term, four-year agreement.  Having been terminated early by Dams, Marchen was entitled to damages based on the amounts he would have received for the balance of that term.

Marchen was awarded over $18,000 in lost wages, another $25,000 in consequential damages for the resulting loss of training and status, and over $2,000 compensation for his move to the Okanagan.

The Court really got serious when it started considering the availability of punitive damages.  It indicated that the claim for punitive damages arose from Dams’ attempt throughout the litigation to cover up the real reason for Marchen’s dismissal.

The Court found that Dams’ attempt to justify Marchen’s dismissal on the basis of downsizing was “a planned and deliberate attempt to mislead the court”.  It characterized Dams’ actions as “reprehensible and a substantial departure from the conduct and practices reasonably to be expected from an employer”.

The Court found Dams’ actions particularly reprehensible in regard to “a young apprentice whom it wrongfully terminated from his first full-time job because of unfounded suspicions.  Tyler was a hard working, loyal employee.  He deserved better.”

Taking all of the circumstances into account, the Court awarded Marchen an extra $100,000 in punitive damages.  Taking all the damages into account (not counting legal costs), the Court’s award cost Dams over $145,000.  

The majority of the damages resulted directly from Dams’ ill-conceived attempt to mischaracterize the true reason for Marchen’s dismissal.  This result should serve as a cautionary tale for employers who seek to re-write history in an attempt to keep former employees from receiving the damages to which they are entitled.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log onto www.pushormitchell.com. If you have a labour or employment question for him to answer in a future Legal Ease, email him at smithson@pushormitchell.com. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.