by Keri Bennett
We all know litigation is expensive. That’s particularly true when an employer seeks to justify a for-cause termination. But there may be an alternative to protracted litigation. In Cotter v. Point Grey Golf and Country Club, the British Columbia Supreme Court proceeded in an abbreviated way. It recently allowed a for-cause termination matter to proceed by a short summary trial, saving the employer thousands of dollars in legal fees. And the result was great, too. The court confirmed that the employer had cause to terminate.
Facts
The 16-year employee in this case worked as an accountant and controller for a local golf club. The employee was responsible for tracking and reporting on the company’s finances. The employee decided that the golf club had not properly dealt with a property tax assessment issue even though the matter had been resolved and the British Columbia assessment office confirmed there were no outstanding liabilities. As a result, the employee refused to sign some management letters to the auditor.
The employee ignored two written warnings from his manager not to continue to discuss the matter with anyone without knowledge or consent of his manager or the club’s president. Instead the employee continued to contact various external parties.
The property tax assessment issue was reviewed multiple times by management, the board of directors, the audit committee, and the external auditors. Each time it was determined that there were no outstanding liabilities. Yet the employee continued to refuse to sign the management letter to the auditor, resulting in increased costs to the golf club.
Ultimately, because of the employee’s continued failure to follow management direction, the significant efforts taken to resolve the employee’s concerns and his ongoing insubordinate behavior, the employee was terminated for cause.
Availability of summary trial
The trial in this case was originally set for 13 days. A further 10 days were added, and a 23-day trial was set down for hearing. At a later case-planning conference at the court, the employee agreed that the matter should proceed by way of summary trial—an abbreviated trial where most evidence goes in by affidavit instead of traditional witness testimony. The employee later changed his mind and tried to argue that the trial should not proceed on a summary trial basis.
Each party filed affidavits in evidence and examination for discovery transcripts.
Trial decision
The trial judge considered that this matter could proceed by way of summary trial, rather than a full conventional trial. Why?
• The matter was not complex and the case law in the area was settled;
• The documents “spoke for themselves” and removed many issues of credibility; and
• The issues the employee wished to testify to were irrelevant to the question of whether or not his employment had been terminated for cause.
The trial judge determined that the employee was willfully disobedient, refused to take direction, and ignored the repeated warnings given to him. His willfully insubordinate behavior and communication with outside parties in contravention of his manager’s direction were incompatible with the employee-employer relationship. Therefore, his employment was justly terminated for cause, and the employee’s claim was dismissed.
Takeaway for employers
This case continues to show the importance of maintaining clear written records of warnings and employee discipline. Where the written record provides sufficient evidence, there is the possibility of reducing litigation costs by proceeding on a summary trial basis. Since most provinces in Canada have summary trials available in their court rules, this applies across the country.
