Teresa Scholer was a fifty-five year old employee working in an
entry-level position with the defendant employer. At the time of
the termination of her employment, she had been working with the
employer for approximately nine or ten months. In early 2010, Ms.
Scholer was attending to her duties when she had an exchange
with a co-worker. Inexplicably, after the exchange, her co-worker
kicked Ms. Scholer in the buttocks. This event was captured by the
employer's video surveillance. The video surveillance also
captured Ms. Scholer attempting to return the kick.
It was not clear from the video whether this was horseplay or
something more aggressive. However, Ms. Scholer's position was
that she had been assaulted, and she complained to the employer
that she was considering seeking criminal charges against her
co-worker. She also complained about an earlier incident involving
the same co-worker and about the fact that the co-worker had been
scheduled for more shifts.
The employer viewed the surveillance, and considered that Ms.
Scholer had not been honest about the incident, and had exaggerated
it. Ms. Scholer was informed of the employer's view of her
description of events, but before Ms. Scholer was given an
opportunity to review the surveillance, the employer terminated her
employment, allegedly because she was difficult. Ms. Scholer was
paid statutory notice of termination of employment, but the
employer nevertheless insisted at trial that the termination had
been for just cause.
The B.C. Provincial Court found that the employer had not
established just cause. In particular, the Court found the
employer's focus on Ms. Scholer's description of the
incident, rather than the fact that she had been kicked in the
buttocks, perplexing. In all, the Court found that Ms.
Scholer's inaccurate description of the incident was neither in
and of itself just cause for dismissal, nor was it a culminating
incident that would justify the termination of her employment.
There was no evidence that prior to her termination Ms. Scholer was
aware that her job was in jeopardy. Finding that she was wrongfully
dismissed, the Court assessed a notice period of four weeks given
her particular circumstances including her short service.
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