A British Columbia Provincial Court judge has awarded an employee $13,076.96 in severance after finding his termination was not for just cause because the employer failed to follow proper progressive discipline procedures, despite evidence of performance concerns.
The worker was employed by Rooke Construction as a site superintendent starting June 3, 2024, initially at $35 per hour for 40 hours per week. In July 2024, he received an annual salary of $85,000. He was terminated on January 2, 2025.
The employer filed a claim seeking $26,141.90 for breach of contract. The worker responded with a counterclaim alleging wrongful dismissal and seeking aggravated and punitive damages. The worker admitted owing the employer $25,000 but disputed the interest claim.
Performance concerns not documented
The court accepted the employer’s evidence that it verbally discussed with the worker on several occasions deficiencies in his work, concerns about his failure to arrive at work sites on time, and his inability to complete work that prevented the company from fulfilling contractual obligations to customers.
The court also found the worker either disregarded these matters due to how he was told or did not treat the misconduct as seriously as it deserved.
“That said, this is precisely why we have progressive procedural rules and a series of progressive disciplinary measures in place,” the court stated. “These were not followed in this case.”
The court noted there was no clear record of what occurred between July 2024, when the worker received his salary increase, and his termination in January 2025.
Just cause threshold not met
The court applied a contextual test examining the nature of the misconduct, the worker’s position within the company, his work history, and whether he reasonably knew his conduct was prohibited and his employment was at risk.
“I am unable to find that Mr. [J.] knew how his misconduct was affecting the employer,” the court stated. “That is precisely why we have progressive discipline, so there is no doubt or ambiguity about it.”
The court found it could not conclude the worker was provided with clear rules, warnings, and a fair investigation. “Had Rooke Construction done so, just cause would likely have been established,” the court noted.
The court referenced several key cases, including McKinley v. BC Tel, in which the Supreme Court of Canada held that not every instance of misconduct justifies dismissal and that the question is whether the misconduct fundamentally damaged the employment relationship.
The court also cited Lefebvre v. Gisborne Holdings, where an employer dismissed a worker for performance concerns but had not trained her adequately, given prior warnings, considered lesser discipline, or followed its own progressive discipline policy.
Employer lacked clear policies
The court found that at the time of termination, the employer lacked clear policies, had not warned the worker or documented issues beyond verbal notices, and did not follow up in writing to ensure he understood his employment was at risk.
“The employer’s claim that the incidents were not isolated and were performance-related was not effectively communicated to Mr. [J.],” the court stated.
While the employer’s principal believed the termination was necessary for financial reasons and to protect the company, the court found the proper procedures were not followed.
“I cannot find that Rooke Construction’s decision to terminate Mr. [J.] was vindictive or reprehensible,” the court stated. “I find no marked departure from decent behaviour that would justify an award of punitive damages.”
Severance based on employment contract
The employment contract specified the worker was required to give eight weeks’ notice prior to resignation. The court applied this reciprocally to determine severance.
“To use a colloquial expression, ‘what’s good for the goose is good for the gander,'” the court stated. “I interpret the employment contract as requiring whichever party wishes to terminate Mr. [J.]’s employment with Rooke Construction to give eight weeks’ notice to the other party.”
Based on the worker’s weekly salary of $1,634.62, the court calculated eight weeks’ severance at $13,076.96.
The court declined to award aggravated or punitive damages, finding the worker did not prove mental distress and that the employer’s conduct was not egregious, malicious, or outrageous. “The contractual damages are sufficient in these circumstances,” the court stated.
The court also granted judgment in favour of the employer for $27,819.98 on its breach of contract claim.
For more information, see Rooke Construction Inc. v. (Defendant), 2025 BCPC 237 (CanLII).
