A chef at a remote back-country ski lodge in British Columbia was told not to come in to work and not talk to his team after returning from a medical leave just as the COVID-19 pandemic was taking hold.
But those requests were temporary, related to the pandemic and to concerns over his communication style, and did not amount to constructive dismissal, the Supreme Court of British Columbia has ruled.
The background
Keith Farkas was hired in December 2001 as a cook at Island Lake Resort in Fernie, B.C.. Over the years, he was promoted to sous-chef and then eventually chef. He left the company in 2007, but returned in 2011 as the executive chef.
In October 2019, concerns were brought to management about the kitchen operations. While the quality of the food wasn’t in question, there were issues around communication between Farkas and his team. That was brought to Farkas’ attention in a performance review that year.
On Jan. 21, 2020, the company fired Farkas’ wife. After that event, Farkas had a perception that the workplace had become toxic for him.
His colleagues spoke to him less, and became cold and unfriendly, he thought.
Farkas also felt his own job was at risk, and sent a note to CEO Doug Feely stating he was not comfortable meeting one-on-one because he felt like he might be bullied into doing something or saying something he didn’t agree with; and that “I also feel that I will be the victim to an abuse of power from you.”
An accidental text message
On Feb. 6, 2020, Farkas took a medical leave. He announced that move via text to Feely, HR manager Nancie Sanford and Mark Butcher, a member of the kitchen staff.
Sanford responded to the same group with the following:
“We have to do this very quickly, things are moving, I want to meet with you, then Mike, then Annabelle, today and just update where each of you are at. Keith is not up there so no need to worry about that.”
Farkas was inadvertently included on that message. He felt that it showed that “something was happening at (his) workplace to further exclude (him),” the court said.
On March 14, 2020, Farkas sent an email to his team announcing his return to work. That same day, Sanford scheduled a meeting with him and Feely for March 16.
The March 16 meeting
The point of the meeting was to discuss his return to work. Feely said that, due to the pandemic, the Lodge was in the process of winding down operations and would close on March 18. Further, he told Farkas the kitchen shifts had already been filled for the next 48 hours, but he would be put on the payroll so he could be compensated.
Feely told him not to go to the lodge, and told him to work from the office or from home. He also brought up concerns the kitchen staff had about his communication style and asked him to “build” a plan to address those concerns.
The plan would be presented to kitchen staff at a meeting scheduled for March 19 at the lodge.
The March 17 meeting
Farkas met with Sanford the next day, and she told him he could work on three tasks until the March 19 meeting:
- A plan to engage culinary schools to recruit red seal chefs
- Drafting the communication plan to present to the kitchen staff
- Prepare budgets and menus
Sanford said she never told Farkas he could never return to the lodge, something the court agreed with — as the kitchen staff meeting was happening March 19 at the lodge.
Later that day, Farkas emailed Feely and said:
“Doug, recent developments, including a pattern of socially isolated me have amounted to a repudiation of my contact [sic]. Including for health-related reasons, I feel I have no option but to accept that repudiation, with the effect I have been constructively dismissed. You will hear from my lawyer in due course. Keith Farkas.”
The court’s ruling
The Supreme Court of British Columbia pointed out that it is the plaintiff’s responsibility to establish constructive dismissal.
There are two ways an employer’s action may constitute constructive dismissal.
First, when it takes a unilateral action that breaches an essential term of the employment contract.
Second is a series of acts that, taken cumulatively, would lead a “reasonable person to conclude that the employer no longer intended to be bound by the employment contract.”
The court said the employer’s demands in this case didn’t meet those tests.
“I find that taking temporary steps regarding how work will be performed is an implicit term of an employment contract,” it said
The employer didn’t want Farkas to come because of the pandemic and shutting of operations; it had already scheduled enough staff in the kitchen; it wanted him to work on other tasks; and given the fact the lodge was remote and required a snowmobile to get there the company wanted to limit the number of people going there at a time it was trying to move people out.
Request not to communicate with staff
On this matter, the court found the request not to talk to the kitchen staff was temporary and made in good faith.
It was designed to allow Farkas time to develop a communication plan to be delivered in about 72 hours at the March 19 scheduled meeting.
“There is no evidence that (Farkas) was permanently forbidden from speaking with his staff,” the court said. “The only reasonable inference from the (company) asking (Farkas) to create a communication plan for the kitchen staff was that there would be future communication… and (Farkas) would be the one who would shape the form of communication.”
Permanently forbidding managers to talk to their teams might rise to the level of breach of a term of an employment contract, the court said. But a short period of time, in these circumstances, was not, it said.
The termination of his wife
The court said it understood that Farkas found himself in a difficult position when his wife was terminated, and he was required to continue working with the staff and managers responsible for that decision.
“However, in my view, (Farkas) took the demands the (employer) made of him on March 16, 2020, as an opportunity to treat the employment contract as repudiated and to end his employment relationship,” it said.
Farkas resigned quickly, without allowing time to determine how the changes might affect his responsibilities. The court said it preferred the employer’s evidence that these changes were indeed temporary — within 72 hours, he would have been at the lodge communicating with his staff.
None of the changes impacted his salary, title or reporting structure.
Communication during leave
The court also commented on the fact Farkas complained the employer did not wish him well during his leave.
It was not evidence of hostility, it said, but rather was an example of how Farkas’ view of the circumstances was “skewed through a subjective lens of negativity.” The company said it didn’t call him during the leave to respect his privacy as he recovered.
Had the employer reached out, the court said Farkas might argue that during his leave he was disturbed with communication while he was unwell.
The court concluded Farkas had not been constructively dismissed, and awarded costs to the defendant.
For more information see Farkas v Island Lake Resort Group (2003) Inc., 2022 BCSC 1282 (CanLII)
