Vernon v BC January 2012 – Aggravated - $35,000, Punitive - $50,000
The failure of the employer to conduct a reasonable and fair investigation was again the subject of judicial rebuke in the B.C. Supreme Court decision of Vernon v BC (Liquor Distribution Branch), a decision of Goepel J.
The manner of the investigation, the court concluded, was flawed from the beginning to the end. As noted above, the court took a very narrow approach to the construction of the “manner of termination” and excluded the failed investigation as a source of aggravated or punitive damages.
On this subject, the court stated:
In this case, for reasons I have already set out, the investigation of the complaint was unfair. Ms. Vernon was given no real opportunity to deal with the allegations in the complaint and no opportunity at all to deal with the allegations made in the course of the interviews. The unfair investigation, however, does not give rise to aggravated damages.
[373] The foundation of the claim for aggravated damages is the manner of dismissal. The meeting of April 19, 2010, could not have been handled in a more insensitive manner. Ms. Vernon, a 30-year employee with an unblemished record, was summoned to a meeting where she was told her conduct was shameful and that she was an embarrassment to the LDB. When she asked for additional time to consider her position she was told she only had until noon on Friday because Mr. Branham was not prepared to wait around until 4:00 p.m. on a Friday to learn her decision. Having told Ms. Vernon that she was to be terminated, the LDB then suspended her without pay and left her in limbo from April 19 to May 31 when they finally got around to telling her she was fired.
This is at odds with the decision of the Alberta court in Elgert. It does seem odd that the manner of termination would not encompass the flawed investigation which led to this event. 1
The comments of the court, nonetheless on the failings of the investigative process remain instructional. The court’s adverse comments included the following:
- The person selected as the investigator had been previously the plaintiff’s labour relations advisor and was the person to whom Mrs. Vernon confided previously on other matters and on these issues. She should not have been the investigator;
- The process was biased as the investigator proceeded to assemble a list of witnesses who she knew would have negative views of the plaintiff;
- The initial interview of the plaintiff was an interrogation from her former labour relations advisor;
- The plaintiff was at this initial meeting given a letter containing eight complaints and asked for her immediate response, without the chance to prepare.
- The investigator falsely reported that the plaintiff’s response was to deny all allegations;
- Witnesses who supported the plaintiff were accused of lying.
The manner of the investigation, the court concluded, was flawed from the beginning to the end.