Mokua Gichuru was taken on as an articled student at Howard
Smith & Company in Surrey, BC. After 3 months, Gichuru was
fired for insubordination. He sued the firm for wrongful dismissal
and his principal for breach of fiduciary duty. His claim has
failed: Gichuru v Smith, 2013 BCSC 895.
A 'major and continuing source of friction' between
Gichuru and the firm was the student's availability over the
lunch period: the student made a practice of going home, which he
found 'refreshing', but which the firm found more than a
bit of a problem. And also Gichuru's lack of responsiveness to
instruction and failure to have his mobile phone on. But really
'the main issue was lunch', and Gichuru seems to have been
told that if he wasn't prepared to eat a sandwich at his desk
then perhaps he should look for another position. When asked to
retrieve his principal's Criminal Code from his
car, Gichuru appears to have stood up in court and
declared to all present, 'I will not', on the grounds that
he did not 'carry bags'. Gichuru denied that the courtroom
episode took place. After some days in which Gichuru appeared to be
AWOL, his articles were terminated.With some difficulty, he later
found another position.
Madam Justice Adair concluded that the firm's account of
things was credible: it was likely that the firm had set out its
expectations, indicated that they were not being met and had
encountered some resistance from Gichuru. His insistence on not
having a lunch break -- which did not reflect the reality that he
was allowed to eat lunch, as work demands permitted -- undermined
Gichuru's credibility. The firm had just cause to dismiss
Gichuru: he had been given appropriate assignments which he did not
perform, had been given warnings about his inadequate performance
and had been insubordinate in response. The fiduciary claim failed
as well; the relation between a principal and an articled student
is not fiduciary per se, and there were insufficient facts to
ground an ad hoc relation of that nature.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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