GiVogue v International Union of Elevator Constructors Local 130, 2021 ABPC 188, is a recent case where the employer (which happened to itself be the elevator workers’ union) alleged just cause for termination of a 46 year old office manager / bookkeeper (non-management) with 3 years and 9 months of service.
The Honorable Judge D.B. Higa found that there was no just cause for termination, and awarded 5 months’ reasonable notice (severance).
Legal counsel for the successful plaintiff in this case was Bow River Law’s very own Sarah Coderre.
Facts
Here are some of the key facts found by the court in this case:
- GiVogue was an office manager / bookkeeper with the union
- One of Ms. GiVogue’s ordinary responsibilities was payroll
- Throughout her employment, Ms. GiVogue had flexibility in putting in her 40-hour work week. She would informally advise the boss when she would work from home, be late, or attend to family obligations, and would undertake to make up missed hours by working late, working from home, or working through lunch
- Recent changes in the workplace had been causing Ms. GiVogue a great deal of stress and she had taken a short time off for stress leave
- The payroll system had recently undergone some changes as well, and she was not the one who implemented them
- GiVogue was required to put in her own time manually
- GiVogue entered time for a day she did not actually work and was paid for it
- When the union discovered the extra paid-day, they brought her into a meeting, told her she was being terminated, and told her they had caught her stealing. GiVogue did not say at the meeting that it was a mistake, but provided some explanations of what she thought may have happened. The union did not accept these explanations
- The union purported to have just cause to terminate her employment.
Analysis / Conclusion
Credibility findings were important in this case, because the union’s position was that she had intentionally and fraudulently entered time for a day she had not actually worked, in order to steal money. Ms. GiVogue’s position was that it was a mistake.
Ms. GiVogue had not actually said it was a mistake at that termination meeting. The union argued that what she did instead was make up a series of excuses, which, it argued, is something a guilty person does.
The court rejected the union’s argument on credibility and just cause, noting as follows:
[65] In my view, Ms. GiVogue’s demeanor and statements are those of a loyal employee who was overwhelmed, shaken and confused by news she was being fired for actions she could not understand and comprehend and accused of a fraudulent activity. I do not find her responses are solely those of an individual who was trying to explain away a bad situation, for which she got caught.
[…]
[73] The changing dynamic and other personal issues led Ms. GiVogue to seek medical assistance, resulting in the issuance of work absence letters for February 9 to 18 and February 14 to 25. Ms. GiVogue states she was “sick and stressed” during this period. She was under additional stress having to deal with issues relating to her mother.
[74] In the Court’s contextual analysis, the Court has considered all of the above noted circumstances, facts and factors.
[75] Local 130 has failed to prove just cause and that Ms. GiVogue’s actions were intentional, dishonest, fraudulent or deceitful. Ms. GiVogue’s employment was wrongfully terminated and she is entitled to damages.
The court went on to note that even if Ms. GiVogue’s actions had been found to have fraudulent intent, there would still be no just cause in all of the circumstances of this case:
[80] I do not consider Ms. GiVogue’s actions, in the context of the facts and circumstances, made the employment relationship irreconcilable. Mr. Ireland’s relationship with Ms. GiVogue may have been impacted, but Ms. GiVogue’s employment relationship with Local 130 was not fundamentally broken.
In the end, the court awarded a 5 month notice period to a 3 year and 9 month, non-managerial employee.
My Take
The finding that there was no just cause in this case does not surprise me, although I have some advantage of having met the plaintiff and seeing her demeanor in court and I would say she came across as genuine. Given Judge Higa’s conclusion that Ms. GiVogue had made a mistake and had not intentionally stolen from the union, I would have been very surprised if the just cause element had turned out differently.
However, Judge Higa also found that even if he was wrong about fraudulent intent, it would not have constituted just cause. That is significant. Traditionally, dishonesty is just cause for termination of employment. More recent cases require a proportionality analysis in the face of dishonesty, the same as any other misconduct. Judge Higa could certainly have used his discretion to decide this point either way in the circumstances, so Sarah Coderre did a great job on this point as well!
Bow River Law LLP
Bow River Law is an Alberta employment law firm headed by Joel Fairbrother and Sarah Coderre. We are all skilled and experienced in employment law, labour law, human rights, harassment issues, and just about any other legal matter affecting the workplace. If you are an employer or an employee in need of legal advice or representation, let us help you.
The GiVogue case can be found at the following link on CanLii: https://www.canlii.org/en/ab/abpc/doc/2021/2021canlii56580/2021canlii56580.html?autocompleteStr=GiVogue%20v%20&autocompletePos=5
