Credit: ADOBE STOCK
January 19, 2021 – 7:00 a.m.
A Kelowna broker fined $ 1,000 for failing to pay a former employee’s salary has received an appeal to reconsider the case.
In the Jan. 7 Employment Standards Tribunal decision, real estate agent Kevin Cheale argues that former handyman Bradley McDermott “just stopped” coming to work and that his employment relationship did not end, as the tribunal found, and therefore none Severance payment was owed.
Tribunal member Carol Roberts agreed, saying the tribunal’s original delegate made a mistake by “acting on the facts that could not reasonably be maintained”.
Cheale, who owns a real estate management and rental company called Kevin Cheale Personal Real Estate Corporation, was previously fined $ 1,000 and paid McDermott $ 1,099 for wages, vacation pay, and service compensation following a July 2020 court ruling.
He argued that the former employee, whose job is named “handyman” in the decision, failed to show up for work on July 24, 2019 and did not answer his phone when he was called.
According to the decision, the handyman showed up for work a week later on August 1st but “didn’t want to talk about it” when asked where he was on July 24th. After August 1, he just stopped reporting for work, “says the decision.
The decision states that Cheale called the handyman several times to inquire about where he was, but he never answered the phone. The handyman gave evidence at the original hearing that he did not respond to the phone calls as Cheale threatened to “come after him with a lawyer”.
The ruling states that both parties made conflicting statements about what happened on August 1st.
The handyman says Cheale told him he was going to be “fired” while the realtor said he didn’t fire the handyman and he just stopped showing up for work.
On appeal, Cheale argues that the original delegate “discriminated against” him and “selectively retold” the craftsman’s evidence without giving his “character” any proper weight.
Cheale argues that the handyman told a colleague that he only wanted to work as long as it took to get the worker’s compensation and that he was injured a few months earlier.
According to the decision, the craftsman filed a WorkSafe BC claim on August 2nd. The decision states that the claim was unsuccessful.
While the appeals court rejected some of Cheale’s arguments, the tribunal member agreed that the original delegate did not give “reasonable weight” to all circumstances affecting the tradesman’s conduct, including comments about long hours in order to obtain compensation for the worker Moving in and filing a claim August 2nd.
“In my opinion, the delegate erred in law by failing to fully address the employer’s argument that the employee had given up his employment,” the tribunal member said. “I believe that (the delegate) did not give full thought to whether a reasonable person, who viewed the circumstances objectively, would have understood from the employee’s words and actions that he had terminated the contract.”
With the complaint filed, the matter will now be referred back to an Employment Standards Tribunal for reconsideration.
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