A courier driver in British Columbia who worked one shift before being fired has been awarded three weeks’ pay.
Dagim Tessema was hired as a driver by Nemesis Coffee Holdings. His first and only shift was Dec. 13, 2021. His next scheduled shift was Dec. 16, but on Dec. 15 the company called him and terminated his employment.
There was no formal written employment contract between the parties, and the case was brought before the Civil Resolution Tribunal of B.C. (CRT).
Probationary period
The company said Tessema was under a probationary period when he was fired. But the tribunal said there was no evidence of any probationary period in either the job advertisement or the email correspondence that led to his hiring.
The burden was on the employer to prove there was a contractual probationary period, and it failed to do so, the tribunal ruled.
It also ruled that “nothing turns” on the fact that provincial employment standards legislation only provides entitlement to compensation for length of service after three months. The CRT has no jurisdiction over ESA entitlements and this was a claim for common law damages.
The company said it terminated Tessema because his driving was so poor that it amounted to just cause. But Tessema denied he was a bad driver, and Nemesis offered no evidence to support this claim. (At the time of termination, Nemesis did not rely on just cause as a reason in order to spare Tessema’s feelings, it said.)
“The parties disagree about whether Mr. Tessema’s driving was poor and, even if it was not ideal, I find Nemesis has not proved it amounted to serious or gross incompetence,” the CRT said. “There is also no evidence Nemesis ever expressed any concern to Mr. Tessema about his driving during the shift. “
Damages
Tessema sought $2,400, based on four weeks’ severance at $20 per hour. He said four weeks work would have amounted to 120 hours.
Nemesis, though, said the pay was $20 per hour but it advised Tessema he could expect about 30 hours of work per week.
It took Tessema, 32, one month to find another job, and the burden was on Nemesis to prove he failed to mitigate his damages — the tribunal ruled it had not proven that case, so there was no deduction.
Taking into account the usual Bardal factors (age, the type and length of employment, and the availability of similar employment in terms of responsibility, training, and compensation) the court settled on three weeks as an appropriate notice period.
Total damages were $1,800, based on 90 hours at $20 per hour.
Criminal reference check fee
Tessema also sought to have $60 reimbursed that he paid for a criminal record check that was a condition of employment. Here, the CRT sided with the employer.
“Providing the criminal record check was a condition of Nemesis hiring him. Mr. Tessema could have chosen not to apply for position but chose to do so,” it said.
It also awarded pre-interest judgment of $13.03.
For more information, see Tessema v. Nemesis Coffee Holdings Inc., 2022 BCCRT 1113 (CanLII)
