Unfair or Bad Faith Dealings in the Course of Staff Member Dismissals

Guest Authored by Chris Hall, Manager of Human Resources

Many Canadians will experience job loss at some point over the course of their working lives. Loss of employment can leave people feeling shocked, anxious about the future, depressed, or even angry. Termination of employment is a very litigious area for employers to navigate, and many do not realize that a staff member can be awarded damages if the employer engages in conduct during the dismissal that is unfair or in bad faith.

Last month, in the case of Kong v. Vancouver Chinese Baptist Church, the B.C. Supreme Court awarded Reverend Kong twelve months pay in lieu of notice in the amount of $54,520 and $30,000 in aggravated damages for the mental distress caused by the manner in which he was dismissed.[1] The court found that the manner of Reverend Kong’s dismissal was unduly insensitive and that the documents made available to the church congregation contained many unproven allegations and innuendo directed at his character.

The details of this publicly reported case indicate that the conflict involved communication and management issues between Reverend Kong and the church’s two associate pastors. Interpersonal conflict often involves an element of emotion that can make it difficult to separate objective, fact-based happenings from subjective feelings or even judgments about someone’s character. Complaints about someone’s character are often intensely personal, and even if untrue, can be particularly damaging to someone’s reputation if the confidentiality of the resolution process is not maintained.

Organizations need to be able to appropriately address interpersonal conflict, which in some instances can lead to the ending of the employment relationship. Having said that, employers must be careful not to engage in conduct during the course of dismissal that is unfair or in bad faith (e.g., being untruthful, misleading, or unduly insensitive). While loss of employment can be devastating for many, unfair or bad faith conduct on the part of the employer can leave staff members with additional feelings of humiliation or embarrassment and potentially even limit their future job prospects.

In the case of Osadca v. Recyclenet Corporation, the employee, Mr. Osadca, was terminated by his supervisor who had unexpectedly visited him at home that day.[2] Mr. Osadca had felt vaguely accused of dishonesty, though he had not been given any proof of the allegations or a chance to defend himself. The Ontario Superior Court of Justice found that Recyclenet’s conduct was unfair and in bad faith, and Mr. Osadca was awarded $7,500 for mental distress as well as $1,650 to cover the cost of the psychotherapy he underwent as a result of Recyclenet’s conduct.

Conflict management is a key competency for ministry leaders as their actions or inactions during the resolution process will largely determine whether a charity is engaging in unfair or bad faith conduct. Leaders need to understand what mechanisms exist within their charity to address various types of complaints and what their obligations are under those mechanisms. They also need to possess the necessary soft skills such as critical listening and being able to empathize without taking sides.

While ministry leaders will be able to resolve most interpersonal complaints internally, and most of these instances will not result in the termination of a staff member, there may be times when it is appropriate to seek external assistance. Investigating formal complaints such as harassment should be conducted by someone with expertise in this area. Even if the charity has someone on staff that could conduct a competent investigation, they may choose to engage an external investigator if there is a perception that the internal investigator is biased or that a conflict of interest exists.

Andrew J. Yu,[3] certified workplace investigator and HR Consultant, and Christian Mediation Canada[4] are examples of Christian service providers that Christian ministries may call upon for assistance. CCCC’s Professional Associate Listing also allows members to search for Christian service providers in their area when external help is needed.

Having appropriate policies and procedures in place and ensuring that ministry leaders are trained in those policies and procedures will help to ensure charities do not engage in conduct that is unfair or in bad faith. Internal mechanisms such as those used to investigate complaints (e.g., interpersonal, harassment, breach of ethics) must be fact based and safeguard sensitive and confidential information collected during the investigation process.

Charities should also be transparent by ensuring that staff members understand the policies and procedures the charity has in place, ideally as part of their orientation process. Staff members need to understand the options available to them if they need to make a formal complaint and the steps the charity will take to investigate and act on the complaint. As part of the resolution process, the respondent should be given the opportunity to respond to the complaint, and charities should resist the urge to skip this step to maintain the integrity of the process. Charities that act to resolve complaints based on incomplete or inaccurate information are at greater risk of engaging in conduct that is unfair or in bad faith.

While litigation around termination of employment will continue to be a reality for faith-based ministries, damages for being unduly insensitive are avoidable. Christian ministries are encouraged to review their conflict resolution procedures to ensure that no systemic causes of unfair or bad faith conduct exist within their charity. Ministry leaders need to recognize when it is appropriate to engage an external party as part of the resolution process, and perhaps most importantly, must rely on fact-based information to help inform good employment related decision making.

References

[1] Kong v. Vancouver Chinese Baptist Church, 2015 BCSC 1328 (CanLII), http://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc1328/2015bcsc1328.html

[2] Osadca v Recyclenet Corporation, 2015 ONSC 4717

[3] http://www.rising-phoenix.ca/

[4] http://www.christianmediation.ca/

Noteworthy is provided for general information purposes and does not constitute legal or professional advice. Every organization’s circumstances are unique. Before acting on the basis of information contained in this blog, readers should consult with a qualified lawyer for advice specific to their situation.