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Tuesday, January 08, 2019 @ 9:58 AM  

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Appeal by the plaintiff, Balzer, and cross-appeal by the defendant, FCL, from a judgment following a wrongful dismissal trial. In 1996, the plaintiff was hired by the defendant as a propane co-ordinator. In 2002, the plaintiff was terminated for cause due to several alleged safety violations arising from the plaintiff backing up a propane delivery truck without first disconnecting the propane fill hoses, causing the discharge of 5,000 litres of propane. The defendant's investigation identified multiple examples of poor judgment surrounding the plaintiff’s failure to promptly notify management, and in leaving the situation unattended and the propane yard unsecured during the incident. The trial judge found that the significant and serious breach of the defendant’s safety policies justified dismissal for cause. The trial judge dismissed the plaintiff’s wrongful dismissal and defamation claims but awarded $19,400 for unpaid overtime. The plaintiff appealed, seeking pay in lieu of 24 months’ notice. The defendant cross-appealed the unpaid overtime award.

HELD: Appeal and cross-appeal dismissed. The trial judge’s failure to address certain evidence regarding the cause of the propane leak was irrelevant to the legal framework adopted and applied to find just cause for the plaintiff’s dismissal. The plaintiff was terminated for a failure to comply with safety policies and procedures before, during and after the leak, rather than because of the leak itself. The evidence supported the conclusion that the combined effect of the plaintiff’s acts and omissions in an emergency situation amounted to a very serious breach of the defendant’s protocols, which was a sufficient basis to terminate the employment relationship. There was no basis for interference with the trial judge’s analysis that resulted in the finding that dismissal of the plaintiff was a proportional response by the defendant. In determining the plaintiff’s claim for overtime pay, the trial judge erred in deciding the issue on the basis of a legal theory that was not pled or argued at trial. However, the evidentiary basis for the trial judge’s findings would not have changed had the defendant had notice of the theory of liability relied upon. Regardless of the error, the trial judge correctly applied the law to the facts in concluding the plaintiff was entitled to overtime pay based on s. 6 of the Labour Standards Act, apart from the examination of the managerial exemption set out in s. 4(2). In determining the overtime claim, the trial judge did not err by imposing a six-year limitation period instead of the one-year period sought by the defendant.

Balzer v. Federated Co-Operatives Ltd., [2018] S.J. No. 459, Saskatchewan Court of Appeal, R.G. Richards C.J.S., M.J. Herauf and L.M. Schwann JJ.A., November 28, 2018. Digest No. TLD-January72019004