Date Issued: December 16, 2020

File: SC-2020-004356

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Jones v. Specialty Yacht Sales Ltd., 2020 BCCRT 1418

Between:

AIMEE JONES

Applicant

And:

SPECIALTY YACHT SALES LTD. and LAWRENCE FRONCZEK

Respondents

And:

AIMEE JONES

RESPONDENT BY COUNTERCLAIM

 

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

INTRODUCTION

1.      The applicant and respondent by counterclaim, Aimee Jones, was employed by the respondent and applicant by counterclaim, Specialty Yacht Sales Ltd. (SYS). The other respondent, Lawrence Fronczek, is SYS’s director.

2.      Ms. Jones says she agreed to work at SYS on Mr. Fronczek’s promise that SYS would provide her with technical apprenticeship opportunities. She says Mr. Fronczek failed to provide those opportunities and then wrongfully terminated her employment. Ms. Jones seeks $5,000 for wrongful dismissal damages, alleged “false representation”, reimbursement of “benefit deductions”, and unpaid wages. Ms. Jones did not specify an amount for each item.

3.      The respondents deny Ms. Jones’ claims. They say SYS was not required to provide technical apprenticeship to Ms. Jones under the employment contract. They also say Ms. Jones has no claim against Mr. Fronczek in his personal capacity. Further, they say that SYS had just cause to terminate Ms. Jones’ employment without notice.

4.      SYS counterclaims and says Ms. Jones trespassed on SYS’s property and removed some unidentified items from its office. SYS seeks an order that Ms. Jones return the items or pay $3,000 in damages. In the alternative, it seeks damages in trespass.

5.      Ms. Jones is self-represented. Mr. Fronczek represents both respondents.

6.      For the reasons that follow, I dismiss Ms. Jones’ claims and SYS’s counterclaim.

JURISDICTION AND PROCEDURE

7.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

8.      Some of the evidence in this dispute amounts to a “she said, they said” scenario. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is an issue.

9.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

10.   Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

Employment Standards Act (ESA)

11.   As a preliminary issue, I considered whether Ms. Jones’ claims or part of her claims fall under the sole jurisdiction of the Employment Standards Branch. An employee is prevented from bringing a civil action, such as to the CRT, where the employee is seeking to enforce a right that they only have under the ESA. Where the rights are provided in the employment contract, the employee may pursue a remedy with the CRT (see the non-binding decision in Bellagamba v. International Tentnology Corp., 2018 BCCRT 549 at paragraph 5, which I find persuasive).

12.   Ms. Jones claims “lost wages” in the Dispute Notice. However, she provided no evidence to show that SYS failed to pay her wages up to the time of termination. So, I infer by “lost wages”, Ms. Jones is claiming wages in lieu of notice as part of her wrongful dismissal claim.

13.   I find Ms. Jones’ claims are for damages for alleged breach of contract. Ms. Jones is not claiming ESA entitlements. I find therefore, that the CRT has jurisdiction over this dispute.

ISSUES

14.   The remaining issues in this dispute are:

a.    Was Ms. Jones wrongfully dismissed?

b.    Is Ms. Jones entitled to reimbursement of her extended health care premiums?

c.    Did Ms. Jones trespass on SYS’s property and take its items?

d.    What, if any, are the appropriate remedies?

EVIDENCE AND ANALYSIS

15.   In a civil proceeding like this one, as the applicant Ms. Jones must prove her claims on a balance of probabilities. Having said that, where an employer seeks to rely on just cause for dismissing an employee, the onus of proving misconduct lies on the employer (see Hawkes v. Levelton Holdings Ltd., 2012 BCSC 1219 at paragraph 28, affirmed 2013 BCCA 306). SYS carries the primary burden of proof on the counterclaim.

16.   I have reviewed all evidence and argument provided by both parties but only refer to that which is necessary to explain and give context to my decision.

Background

Employment Contract

17.   SYS is a company that sells boats and is also involved in moorage, boat houses, parts, boat repairs and servicing on Granville Island in Vancouver, BC.

18.   According to the written employment contract (contract), SYS employed Ms. Jones as a yacht detailer on August 19, 2019. The yacht detailer’s role involves cleaning, repairing minor defects, preparing for boat shows, and other similar tasks.

19.   The contract required Ms. Jones to obtain SYS’s written permission for any employment outside SYS. It also contained a restrictive covenant that Ms. Jones was not permitted to work for competing companies while employed for SYS or for a 12-month period after termination. As discussed below, the restrictive covenant was a factor in the breakdown of the parties’ employment relationship.

20.   The contract’s termination terms permit SYS to terminate Ms. Jones at any time without notice for cause. They also permit SYS to terminate Ms. Jones without cause, so long that it provided notice or payment in lieu of notice in accordance with the ESA.

21.   While the CRT does not have jurisdiction to enforce the ESA, the parties incorporated ESA terms into their contract, and it is that contract that is before me for enforcement.

22.   Ms. Jones worked with SYS from August 19, 2019 until SYS terminated her employment saying it had cause and without notice on May 14, 2020.

Technical Training and Apprenticeship

23.   Within days of her hire, Ms. Jones registered with Quadrant Marine Institute for training to become a “Marine Service Technician” (tech). On August 21, 2019, Mr. Fronczek signed on as Ms. Jones’ sponsor for the tech program through the Industry Training Authority (ITA).

24.   By late 2019, Ms. Jones was looking for more tech related training opportunities outside her employment with SYS. It is undisputed that Mr. Fronczek permitted Ms. Jones to work on Saturdays for another company, Pilot Marine. Mr. Fronczek says this was a temporary exception to the restrictive covenant to help Ms. Jones gain specific tech experience. I understand Ms. Jones worked Saturdays with Pilot Marine from about January 2020 to April 2020. Ms. Jones says she also received some tech experience with SYS though its sub-contracts.

Employment Relationship Breakdown

25.   On about May 1, 2020, Mr. Fronczek and Ms. Jones discussed her interest in doing tech work for competitor companies other than Pilot Marine. Ms. Jones says she wanted to “rescind” the contract’s restrictive covenant. Mr. Fronczek did not agree.

26.   Mr. Fronczek says the restrictive covenant is very important for his yacht business due to its location within the Granville Island docks where there is competition. Mr. Fronczek says he was suspicious that Ms. Jones might be working for competitors because of the number of off-work hours that he saw her on the docks. So, Mr. Fronczek says he asked Ms. Jones whether she was working for a competitor contrary to the restrictive covenant. He says she refused to answer his question. In her submissions, Ms. Jones says she could not answer something that did “not exist”. Ms. Jones asserts that she was not working elsewhere at that time. I find the evidence inconclusive either way.

27.   Mr. Fronczek followed up by email on May 8, 2020 asking Ms. Jones to provide the name of the competitor company she was working for by May 11, 2020. Ms. Jones replied by email that same day responding to a reprimand about other issues. She did not say anything about working (or not working) for a competitor company.

28.   Mr. Fronczek emailed on May 13, 2020, asking “Do you intend to respond to my inquiries?”. Ms. Jones responded: “If I go fishing recreationally with my friends on my time, that is my business”.

29.   Ms. Jones then wrote Mr. Fronczek a separate May 13, 2020 email that included a list of her “frustrations”. Ms. Jones primarily complained about yacht detailing work and that SYS did not provide more consistent tech work. She said she should not have had to give up her weekends to drive “all the way to Shelter Island” for tech work with Pilot Marine. She also expressed concern that the extra tech work from SYS came during the COVID-19 pandemic. It seems Ms. Jones wanted more tech work opportunities instead of her regular yacht detailing hours. In closing, Ms. Jones wrote:

Moving forward, to ensure proper training is available to me for my apprenticeship, I am rescinding my original employment agreement pertaining to working with other marine companies in the future.

Please advise if you are comfortable with this by the end of the day today so I know whether I should come to work tomorrow or not.

30.   On May 14, 2020, Ms. Jones did not show up for her scheduled shift. Mr. Fronczek texted Ms. Jones midday to ask if she was coming into work. Ms. Jones immediately texted: “I emailed you yesterday and you haven’t responded”. Ms. Jones said nothing further and did not attend work.

31.   That evening Mr. Fronczek emailed Ms. Jones that SYS was dismissing her immediately with cause. He provided his reasons that included “insubordination”, her refusal to answer his questions about working elsewhere, the email ultimatum, and her non-attendance at work.

32.   The next day Ms. Jones wrote that the reason she was not at work on May 14, 2020 was both because of a doctor’s appointment and also because she had received no response from Mr. Fronczek. She said she had not expected to be terminated and hoped to have a conversation. Mr. Fronczek responded further explaining the termination decision.

Was Ms. Jones Wrongfully Dismissed?

33.   Ms. Jones says that the whole premise of her working in the industry was to start as a yacht detailer and apprentice in the trade as a tech. Ms. Jones says Mr. Fronczek did not follow through on his alleged promises and falsely represented the tech opportunities within SYS. Ms. Jones says the “in-house” tech opportunities were insufficient and in breach of the contract. She argues that SYS should have rescinded the restrictive covenant to allow her to obtain tech opportunities with others.

34.   Though not stated this way, I find Ms. Jones is essentially arguing that SYS constructively dismissed her because it did not provide her with the allegedly promised and sufficient in-house tech opportunities. Ms. Jones also argues that there was no problem with her work quality and SYS had no reason to terminate her employment with cause. Again, SYS says it had “just cause” to terminate her employment.

Was Ms. Jones constructively dismissed by a lack of tech opportunities?

35.   A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee. The employee then has the right to end the contract and seek monetary damages (see McAlpine v. Econotech Services Ltd. (2004), 2004 BCCA 111, at paragraph 16, and Canada Safeway Limited v. Laal, 2005 BCSC 457 at paragraph 37).

36.   Mr. Fronczek undisputedly provided tech related opportunities for Ms. Jones through SYS sub-contracts and by permitting her to work with Pilot Marine. Ms. Jones provided no supporting evidence, such as from ITA or the training institute, that the tech opportunities were deficient or needed to be done “in-house”. There are also no records showing Mr. Fronczek made promises that were unfulfilled. I find Ms. Jones has not proven that SYS’s tech opportunities were other than as agreed. I find no “false representation” as alleged.

37.   I also find that working as a tech apprentice was not the premise of Ms. Jones’ employment with SYS. I find, on the contract wording, that SYS hired Ms. Jones as a yacht detailer, not as a tech. The contract contained no term or condition (fundamental or otherwise) related to tech opportunities.

38.   The evidence does not show that SYS made a unilateral and fundamental change to the contract. I find no constructive dismissal.

Did SYS have cause to dismiss Ms. Jones from her employment?

39.   As mentioned, SYS has the burden to prove, on a balance of probabilities, that it had just cause to terminate Ms. Jones’ employment.

40.   In general, “just cause” means employee behaviour that, viewed in all the circumstances, is seriously incompatible with the employee's duties. The threshold is high. The question is whether, in the circumstances, the nature and seriousness of the behaviour is unreconcilable with sustaining the employment relationship (see discussion in McKinley v. BC Tel, 2001 SCC 38).

41.   Where an employee provides their employer with an ultimatum or threat of not returning to work, the courts have found that it may constitute resignation. For example, in Billows v. Canarc Forest Products, 2003 BCSC 1352, the court found that the employee’s ultimatum constituted a resignation. The employee had refused to follow his employer’s reasonable directions and refused to continue working if the employer did not allow him to do business his own way.

42.   The courts have also found, depending on the circumstances, that an ultimatum or threat can undermine the employment contract. For example, in Grewal v. Khalsa Credit Union, 2011 BCSC 27, an employee sent a letter to their employer that contained unsubstantiated allegations and demanded, in part, that the employer retract certain statements and issue a widespread apology on threat of legal action. The court found the letter disrespectful, inflammatory, undermined the employment relationship and that it “tipped the balance” to find just cause.

43.   I acknowledge and reviewed all the cases provided by the respondents, but I have not summarized the rest here because the issue of whether there is “just cause” varies from case to case, depending on the underlying facts. In considering whether SYS had just cause to terminate Ms. Jones’ employment, I have applied a contextual analysis to the facts before me.

44.   Within the context of the parties’ prior discussion and the contract wording, I find Ms. Jones knew the restrictive covenant was important to SYS. Mr. Fronczek had just denied her request to remove it. Knowing this, I find it was disrespectful for Ms. Jones to give her employer an ultimatum that she would stop coming into work if SYS did not remove the restrictive covenant. I find she had no reasonable expectation that she would be permitted to work for competitors.

45.   Based on her May 14, 2020 text, and without supporting evidence of a doctor’s appointment, I find it more likely than not Ms. Jones failed to attend her shift because she was enforcing her ultimatum. I find Ms. Jones’ failure to attend her shift was a breach of her employment contract. I find it also showed that she did not want to continue to work for SYS unless it met her new conditions.

46.   I find Ms. Jones’ ultimatum that SYS remove the restrictive covenant on threat of non-attendance, together with her non-attendance the next day, undermined the employment relationship. I find Ms. Jones showed little intention to be bound by the contract.

47.   I also find the general content and tone of Ms. Jones’ emails was at times, dismissive, inflammatory, and showed a lack of respect for Mr. Fronczek’s authority as her employer. Further, I find Ms. Jones should have provided a direct answer to Mr. Fronczek’s question about working elsewhere. I find Ms. Jones could have simply denied working elsewhere if that was the case. Instead, I find her evasive responses suggested to her employer that she was untrustworthy.

48.   I find it relevant when balancing Ms. Jones’ behaviours with the gravity of a termination, that she had only been employed with SYS for a short time, of about 8 months, when she sent these emails and acted on her ultimatum.

49.   Given all these circumstances, I find SYS had cause to dismiss Ms. Jones. Alternatively, I find SYS had the right to treat Ms. Jones’ ultimatum as a resignation, as per the decision in Billows above.

50.   Considering my above findings, I find no need to discuss whether Ms. Jones could claim against Mr. Fronczek in his personal capacity. I dismiss Ms. Jones’ wrongful dismissal claims against both respondents.

Is Ms. Jones entitled to reimbursement of her extended health care premiums?

51.   Ms. Jones seeks an unspecified amount as “reimbursement of benefit deductions”. She alleges that she had asked SYS during her employment to suspend or cancel her extended health benefits and it did not.

52.   I find by “benefit deductions” she is likely referring to her extended health care premiums. I find Ms. Jones was required to pay these premiums under her contract and has no right to reimbursement from SYS. The extended health provider’s plan is not before me. So, it is not clear that SYS could have suspended or cancelled the benefits in any event. I dismiss Ms. Jones’ claim for reimbursement of benefit deductions.

Counterclaim - Did Ms. Jones trespass on SYS’s property and take its items?

53.   In the counterclaim, SYS alleges that Ms. Jones entered SYS’s office after receiving the termination letter. SYS says she might have taken SYS’s items that it estimates at a $3,000 value. Ms. Jones says she did not take anything that was not her own personal property.

54.   There is no dispute that Ms. Jones attended SYS’s office on May 14, 2020 after Mr. Fronczek sent the termination letter and this set off an alarm. Mr. Fronczek says after he was alerted, he attended the office, and met Ms. Jones, who gave back her SYS keys. He says he saw Ms. Jones load one item into her car, which I understand was her personal “inversion table”.

55.   Mr. Fronczek does not say he saw her take anything else but speculates that she might have taken ‘something’ because she let herself into the office. However, he says he has been unable to locate anything missing from SYS.

56.   As Ms. Jones denies taking items and there is no evidence of anything missing, I find SYS has not proven that Ms. Jones took SYS’s personal property. I dismiss its $3,000 counterclaim.

57.   Although not in its Dispute Notice, SYS also seeks nominal damages of $50 in trespass. Trespass to land consists of voluntarily or negligently entering upon the land of another without lawful justification (Lahti v. Chateauvert, 2019 BCSC 1081).

58.   I find trespass relates generally to the original counterclaim and Ms. Jones had a fair opportunity to respond to the allegations in her submissions. So, I have considered SYS’s counterclaim for trespass.

59.   I find Ms. Jones had received the termination letter when she voluntarily entered the property owned by SYS. The termination letter asked Ms. Jones to return all SYS’s property no later than the end of the next day. She attended SYS’s property within that specified time frame. The letter does not tell Ms. Jones that she could not enter the office or that she must attend the office with an SYS employee. Ms. Jones had the (prior) alarm code and her own key. There is also no suggestion that Ms. Jones was previously prohibited from entering after hours. In the circumstances, I find consent for Ms. Jones to enter SYS’s property on May 14, 2020 was reasonably implied. As such, I find Ms. Jones did not enter SYS’s property without lawful justification. I dismiss SYS’s trespass claim.

Fees and Dispute-Related Expenses

60.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. Ms. Jones and SYS were each unsuccessful and so I find they are not entitled to reimbursement of their paid CRT fees. Mr. Fronczek paid no CRT fees. None of the parties claimed dispute-related expense.

ORDER

61.   I dismiss Ms. Jones’ claims, SYS’s counterclaims, and this dispute.