B.C.’s Civil Resolution Tribunal has ordered a construction company to pay a fired employee $1,955 in damages as severance pay.
Derek Weldon Cross claimed J’s Waterproofing Inc. (JWI) owed him $5,000 for unpaid regular wages, unpaid overtime and severance pay.
JWI, however, claimed the matter of wages and overtime was settled and that Cross had no entitlement to severance as he was terminated for cause.
Further, JWI said, Cross has no entitlement to severance pay under the Employment Standards Act (ESA), as JWI is a construction business, and its employees are exempt from severance pay under that law.
In his Jan. 17 decision, tribunal member Christopher Rivers said he had no jurisdiction to grant entitlement to wages, overtime or severance pay under the ESA. That falls to the Employment Standards Branch, he said.
But, he said, he does have jurisdiction over claims based on the law of contract, which falls under the tribunal’s small claims jurisdiction over debt and damages. And, Rivers said, claims for unsettled wages and overtime were out of time for filing and dismissed.
On the issue of severance, Cross said the contract specified at least 10 days’ notice for termination, with an exception for termination with just cause.
JWI alleged Cross was terminated for a number of reasons, including poor performance, encouraging co-workers to quit for other jobs, poor attitude and ‘fraudulent actions.’
Rivers said that, in a document submitted in evidence, JWI advanced grounds of wilful misconduct, fraud, serious undermining of the corporate culture, and serious breach of employment rules and policies.
The company said it gave Cross a Dec. 13, 2020 ‘first and final warning’ about performance. However, the tribunal noted, JWI had not proven its allegations.
“I find that JWI has not proved that it had just cause to dismiss Mr. Cross,” Rivers said.
He found Cross was entitled by contract to a minimum of 10 working days’ notice for a termination. He called it reasonable notice.
The tribunal ruled Cross was entitled to 10 days’ pay in lieu of notice.
“The amount is $1,955.10,” Rivers said.
