Ikilikyan v. The Artisan Bake Shoppe Ltd. – TRIAL WIN

Background

Mr. Ikilikyan had worked as a labourer for a local bakery for approximately 12 years. During his employment, he regularly worked overtime hours.

In April 2018, the bakery terminated Mr. Ikilikyan’s employment and mounted a multitude of allegations of misconduct against him. These allegations included that Mr. Ikilikyan verbally abused other employees, made derogatory remarks about co-workers and management, and threatened to kill/physically harm numerous other employees.

A week before his termination, Mr. Ikilikyan was involved in a verbal altercation with another employee. During this incident, the bakery alleged that Mr. Ikilikyan threatened serious physical harm to the other employee. The bakery viewed this incident as “the last straw” and terminated Mr. Ikilikyan’s employment for just cause, taking the position that it was impossible to continue the employment relationship. As a result, Mr. Ikilikyan received zero severance.

Mr. Ikilikyan was shocked at the allegations and denied engaging in any misconduct. He sued the bakery for wrongful dismissal and claimed twelve (12) months’ pay in lieu of notice, lost vacation pay, and lost overtime wages.

Trial

At trial before the BC Provincial Court, the two main issues in dispute were: 1) whether the bakery had just cause to terminate, and 2) what damages, if any, should be awarded to Mr. Ikilikyan.

The bakery called numerous witnesses in an attempt to prove that Mr. Ikilikyan engaged in serious misconduct. While there were no incidents of actual physical violence, the most serious accusations against Mr. Ikilikyan were that he threatened to kill and physically harm other employees on multiple occasions.

After hearing from Mr. Ikilikyan and the bakery’s witnesses, the Court found that Mr. Ikilikyan was never provided with any opportunity by management to respond to the allegations against him and to tell his side of the story.

While the Court found that there may have been verbal altercations between Mr. Ikilikyan and other employees, the Court concluded that Mr. Ikilikyan was never appropriately warned about any unacceptable behaviour. He was never put on notice that his job was at risk. The Court took in account that Mr. Ikilikyan was a long-service employee with excellent performance reviews.

Furthermore, and importantly, the bakery failed to produce any written documentation substantiating their accusations against Mr. Ikilikyan.

Ruling

The Court ultimately found that Mr. Ikilikyan was wrongfully dismissed and awarded him 12 months’ pay in lieu of notice, as well as lost vacation pay and lost overtime wages for the 12 months subsequent to his date of termination. In awarding lost overtime wages, the Court accepted that if Mr. Ikilikyan had been employed for the 12 months after his date of termination, he would have worked overtime hours and earned the additional wages.

In addition to the award, the Court penalized the employer for its failure to accept Mr. Ikilikyan’s reasonable offers to settle and ordered the employer to pay an additional sum to Mr. Ikilikyan equal to 15% of the total award.

Lessons Learned

FOR EMPLOYEES

The standard for an employer to terminate for just cause is very high. Seek the advice of an employment lawyer if you have been terminated for cause. Even if the employer has numerous witnesses to support their case and even if you may have engaged in some misconduct at work, Canadian courts have set a high standard to meet for just cause terminations. Seek advice from an employment lawyer if you have been terminated for cause, particularly if you were an employee with many years of dedicated service.

Lost overtime wages can be recovered if you have been wrongfully dismissed. This will likely be the case where overtime wages have become part of the employee’s regular compensation, and where it is within the reasonable expectation of the employer and employee that the employee would receive overtime. Courts may look to an employee’s historical number of overtime hours worked to determine what he/she would have earned during the reasonable notice period.

FOR EMPLOYERS

Document, Document, Document. If an employee has engaged in misconduct, record the incident in writing and have the employee sign-off and acknowledge that they have engaged in unacceptable behaviour. Verbal warnings will not suffice in a courtroom and more importantly, they do not impress on the employee the seriousness of their misconduct.

Do not terminate an employee for misconduct without conducting a proper investigation. Particularly when there are serious allegations of misconduct involving conflicting versions of what occurred, always allow all parties to tell their side of the story and conduct an impartial investigation. Document the entire investigation and the basis for reaching any conclusions.