Oct 20

Probationary periods can equal minimum notice

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Church

In Kong v. Vancouver Chinese Baptist Church the probationary period was found to be the notice period minimum.

Every employment relationship is unique, and courts will take account of the particular provisions of an employee’s contract in deciding what remedy is appropriate when that employee is wrongfully dismissed. Kong v. Vancouver Chines Baptist Church, 2015 BCSC 1328, offers a good demonstration of this principle.

Facts

The plaintiff, Rev. Kong (“Kong”) was a pastor, employed by the Vancouver Chinese Baptist Church as its “Senior Pastor” or spiritual leader. His contract of employment specified that “long-term service and relationship is intended. The first 12 months is an adjustment period…at the end of the first year, upon confirmation by both parties, the position becomes permanent.”

Kong was hired on January 1, 2011, and made it through his first 12 months, and was confirmed as a permanent employee. In 2013, he became involved in a personal conflict with two other pastors. After he refused to participate in a reconciliation process proposed by the employer, the Church released to its membership a series of “investigation” documents, including the minutes of some meetings at which its leadership, without any investigation, claimed that Kong was dishonest and a “bad shepherd.”

After this, the membership voted to terminate Kong’s employment effective October 4, 2013, slightly less than three years after he was hired.

Issues

1. How much pay in lieu of notice, if any, was Kong entitled to?
2. What aggravated damages, if any, was Kong entitled to?
3. What punitive damages, if any, was Kong entitled to?

Decision

Pay in Lieu of Notice

The plaintiff’s role of Senior Pastor, because of its religious character, was found to be unique. The 12-month “adjustment period” was found by the Court to be reflective of the time needed to determine whether a pastor was suitable at a new church.

As a result, the Court found that 12 months was an appropriate notice period, and awarded Kong 12 months’ salary, plus the value of his monthly benefits.

Aggravated Damages

The Court found that they way in which the Church dismissed Kong was unduly insensitive. By distributing the unsubstantiated allegations that Kong lacked personal integrity and was a poor spiritual leader, the Church attacked his reputation and sense of personal worth. The Court awarded $30,000.00 in aggravated damages to compensate Kong for the effect of these allegations.

Punitive Damages

Because the Church’s conduct was not “malicious and outrageous”, it did not reach the common law threshold for punitive damages, and so none were awarded.

Principles

Courts do not adhere rigidly to a “one month per year of service” rule when awarding damages for wrongful dismissal. They will consider the peculiar characteristics of the job and especially of the contract of employment, which can sometimes produce awards substantially greater than one month per year.

It is important to note that past results do not necessarily guarantee future results and each case is unique on it’s own merits.

While employees are not compensated for mental distress caused by the fact that they have been dismissed, they can be awarded damages for the mental distress caused by the way that their employer dismisses them, and dismissing an employee in an insensitive, embarrassing way will attract these damages. If you have any questions about your employment situation, call Monkhouse Law today for a free phone consultation.