Gillman v. Saan Stores Ltd. [1992] A.J. No. 1028 (Alta. Ct. Q.B.)
Facts: Gillman, a manager for Saan Stores Ltd. who was having marital problems, was dismissed after approving a day of sick leave for an employee he supervised and allowing her to baby-sit his child while she was off sick. Although the staff were aware of his marital situation and the difficulties he was experiencing finding a babysitter for his child, a senior employee claimed that Gillman had perpetrated a fraud by approving sick leave for the employee while she was babysitting for him. Gillman was dismissed without notice or pay in lieu of notice and was not provided with a letter of reference.
Issues: (1) What constitutes just cause to dismiss without notice or other compensation?; (2) Who bears the onus of proof and is it a different burden if fraud is alleged to be the just cause?
Result: Gillman's conduct only warranted a reprimand, not dismissal. At common law, the employer bears the onus of proving that, on a balance of probabilities, dismissal was for just cause. Where an allegation of fraud or "breach of trust" is made, the employer's burden of proof is greater. The employer did not discharge the usual onus and failed to meet the heavier burden to establish fraud. Although the actions of the employer were imprudent, they were not of the malicious or vexatious nature necessary to elicit an award of punitive damages.
Position: Store Manager
Age: 32 years of age
Salary: $25,000.00 per year plus benefits and a potential bonus.
Length of Service: 4 years
Result (award): 4 months notice (1 month of pay for each year of service) plus 2 additional months for wrongful allegations; recovery of $3,183.00, the money the employee paid to an employment agency.