Slipp v. Woodstock (Town), (2008) 335 N.B.R.(2d) 233 (TD)

• Judge: French, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 30, 2008
• Jurisdiction: New Brunswick
• Citations: (2008), 335 N.B.R.(2d) 233 (TD);2008 NBQB 166

Slipp v. Woodstock (2008), 335 N.B.R.(2d) 233 (TD);

    335 R.N.-B.(2e) 233; 861 A.P.R. 233

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.B.R.(2d) TBEd. JN.036

Renvoi temp.: [2008] N.B.R.(2d) TBEd. JN.036

Kathy Slipp v. Town of Woodstock

(W/C/10/07; 2008 NBQB 166; 2008 NBBR 166)

Indexed As: Slipp v. Woodstock (Town)

Répertorié: Slipp v. Woodstock (Town)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Woodstock

French, J.

May 22, 2008.

Summary:

Résumé:

The plaintiff was an office clerk with the Town of Woodstock. She was responsible for depositing bank funds. Two deposits went missing. The plaintiff agreed to take a polygraph test, which she failed. The town terminated the plaintiff's employment on the grounds that deposits for which she was responsible went missing and she failed the polygraph test. The plaintiff accepted responsibility for the missing funds, but denied taking them. No criminal charges were laid on the basis that the polygraph results were inadmissible and there was insufficient evidence to prove beyond a reasonable doubt that the plaintiff stole the missing funds. The plaintiff sued for damages for wrongful dismissal. The Town acknowledged that it could not prove on a balance of probabilities that the plaintiff stole the funds, but relied on her possible involvement in the loss of funds under her control and the polygraph failure as cause for dismissal, because her conduct was incompatible with the level of trust required for the job she held.

The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiff was dismissed without cause. The polygraph test results were inadmissible and could not be relied on by the Town as cause for dismissal. The fact that monies for which the plaintiff was responsible were unaccounted for did not prove, on a balance of probabilities, that she stole the money. The court awarded the plaintiff damages equal to lost salary and benefits for 10.5 months after her dismissal, less what she earned from new employment commenced during that period.

Master and Servant - Topic 7569

Dismissal or discipline of employees - Grounds - Refusal to take or failure of polygraph test - The plaintiff was an office clerk with the Town of Woodstock - She was responsible for depositing bank funds in the bank - Two deposits went missing - The plaintiff agreed to take a polygraph test, which she failed - The town terminated the plaintiff's employment on the grounds that deposits for which she was responsible went missing and she failed the polygraph test - The plaintiff accepted responsibility for the missing funds, but denied taking them - No criminal charges were laid on the basis that the polygraph results were inadmissible and there was insufficient evidence to prove beyond a reasonable doubt that the plaintiff stole the missing funds - The plaintiff sued for damages for wrongful dismissal - The Town acknowledged that it could not prove on a balance of probabilities that the plaintiff stole the funds, but relied on her possible involvement in the loss of funds under her control and her polygraph failure as cause for dismissal, because her conduct was incompatible with the level of trust required for the job she held - The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiff was dismissed without cause - The polygraph test results were inadmissible and could not be relied on by the Town as cause for dismissal - The fact that monies for which the plaintiff was responsible were unaccounted for did not prove, on a balance of probabilities, that she stole the money - The court awarded the plaintiff damages equal to lost salary and benefits for 10.5 months after her dismissal, less what she earned from new employment commenced during that period.

Master and Servant - Topic 7582

Dismissal or discipline of employees - Grounds - Conduct incompatible with employer's interests - [See Master and Servant - Topic 7569 ].

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - [See Master and Servant - Topic 7569 ].

Employeurs et employés - Cote 7569

Congédiement d'employés ou recours disciplinaire - Motifs - Refus de se soumettre ou échec au test du polygraphe - [Voir Master and Servant - Topic 7569 ].

Employeurs et employés - Cote 7582

Congédiement d'employés ou recours disciplinaire - Motifs - Conduite incompatible avec les intérཻts de l'employeur - [Voir Master and Servant - Topic 7582 ].

Employeurs et employés - Cote 8000

Congédiement non motivé - Avis de congédiement - Préavis raisonnable - ༄༅léments constitutifs - [Voir Master and Servant - Topic 8000 ].

Cases Noticed:

Ball v. MacMillan Bloedel Ltd., [1989] B.C.J. No. 1940 (S.C.), refd to. [para. 40].

McKinley v. BC Tel et al., [2001] 2 S.C.R. 161; 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161, refd to. [para. 40].

LeBlanc v. Cartier Co-operative Ltd. (1980), 31 N.B.R.(2d) 284; 75 A.P.R. 284 (T.D.), refd to. [para. 40].

Byl v. West Wind Aviation Inc., [1987] S.J. No. 293 (Q.B.), refd to. [para. 40].

Kong v. Oshawa Group Ltd., [1993] O.J. No. 498, refd to. [para. 40].

Gibbons v. West Fraser Home Centre Inc., [2004] B.C.T.C. Uned. 368 (S.C.), refd to. [para. 40].

Teale v. United Church of Canada at Woodlawn (Trustees) (1980), 42 N.S.R.(2d) 699; 77 A.P.R. 699 (T.D.), refd to. [para. 40].

Meszaros v. Simpson Sears Ltd. (1979), 19 A.R. 239 (Q.B.), refd to. [para. 40].

Counsel:

Avocats:

Peter E. Crocco, Q.C., for the plaintiff;

Clarence L. Bennett, for the defendant.

This action was heard on April 30, 2008, before French, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Woodstock, who delivered the following judgment on May 22, 2008.