Recent court decisions touched on social media, bonuses and more

Howard Levitt shares highlights of key proceedings from across the country

Every month, for the past 33 years, I have reviewed every employment law case from coast-to-coast, summarizing the significant ones in my role as Editor-in-Chief of the Dismissal and Employment Law Digest.

Here is a grab bag from last month’s issue.

I had previously written about the case of Kerry Klonteig v. District of West Kelowna decision, of Jan. 26, in the context of off-duty conduct as cause for discharge.

Klonteig sought additional damages because the fire department did not provide him with a reference letter even though he was found to be terminated without cause. The court did not award those damages because Klonteig did not take up the company’s offer of an oral reference and was unable to prove that his difficulty in securing employment resulted from the lack of a reference. But the court noted that not receiving a reference

can result in additional damages. This is something employees should think of when suing for wrongful dismissal. Ask for a reference. If it is not granted, your damages can increase.

In Rancourt-Cairns v. Saint Croix Printing and Publishing, Jan. 18 (New Brunswick Queen’s Bench), Catherine Rancourt-Cairns sued for invasion of privacy because the employer had accessed her social media postings. The court found there to be no problem with the company accessing public postings, but called for a further hearing as to whether it had accessed her private information on other social media sites. It held out the prospect of additional damages if it had done so. With employers increasingly viewing employees’ social media postings, a risk exists if their search reaches the non-public realm.

The Decision of the Ontario Court of Appeal, Feb. 27, in David Bain v. UBS Securities dealt with the often-litigated issue of an employee’s right to discretionary bonuses as part of wrongful dismissal damages.

Bain was told that, since he was terminated in February, he

would not receive his bonus for the previous year as his employer was downsizing.

The court found that bonuses awarded at the employer’s discretion cannot be determined arbitrarily and that an employer cannot decide that an employee should not receive a bonus unless it follows a fair, and identifiable, process.

In this case, his bonuses represented most of his earnings. His performance review for 2012 indicated he had exceeded his objectives, and there was no indication when he was terminated of any problems that would affect his bonus. As a result, the court awarded him a bonus for the previous year based on the average of bonuses for other employees at his level in the company. He also received bonuses during the period of reasonable notice.

In Christopher Chambers v. Global Traffic Technologies, March 22, the court found that, while the incentive plan required an employee to be employed when the bonus was payable, that would not apply to an unlawful termination in the absence of very clear language. As such, Chambers received his bonus.

An issue that often arises is whether layoffs amount to a wrongful dismissal.

In the case of Stepanian v. Resaux, two professionals were laid off temporarily. One eventually returned to work and the second found other employment. The court found that since neither had agreed that their work was precarious or that they would be subject to layoff, they were entitled to wrongful dismissal damages accordingly.

Another court relied upon a Criminal Court judge’s finding of a breach of fiduciary duty in a claim for $20 million dollars (David Hillier v. Atlas Copco Canada dated March 5, Ontario Superior Court) in a lawsuit for civil fraud and breach of fiduciary duty. This would suggest an advantage, in some cases, to having a criminal law determination made before proceeding civilly.