The Plaintiff “held an office” with the Defendant Municipality and therefore a duty of fairness applied to the administrative decision to terminate his employment. The Plaintiff was entitled to a hearing which he did not receive; therefore, the Defendant municipality did not comply with its duty of procedural fairness in terminating his employment.

24. August 2004 0

Administrative law – Employment law – Termination of employment – Wrongful dismissal – Hold an office – definition – Damages – Decisions of administrative tribunals – Municipal councils – Judicial review – Administrative decisions – Procedural requirements and fairness

Reglin v. Creston (Town), [2004] B.C.J. No. 1218, British Columbia Supreme Court, June 10, 2004, Melnick J.

The Plaintiff claimed that he was wrongfully dismissed from his employment as deputy treasurer/collector with the Defendant municipality. The Defendant admitted that it had terminated the Plaintiff’s employment on a “without cause” basis, providing him with severance pay in lieu of notice. The Plaintiff’s termination resulted from a conflict between him and his supervisor, Mr. H. The Plaintiff had written a report critical of Mr. H. which Mr. H. was allowed to address before city council. The Plaintiff, however, was not allowed to address council in response to Mr. H.’s comments.

The court noted that the law recognizes the right of both employers and employees to terminate an employment contract at any time. However, there are cases in which employees are entitled to procedural fairness in the termination of their employment. The existence of the general duty to act fairly will depend on the consideration of three factors:

(1)  the nature of the decision to be made by the administrative body;

(2)  the relationship existing between that body and the individual; and

(3)  the effect of that decision on the individual’s rights.

The court observed that the main point of contention in this case was whether there was a relationship of the requisite kind between the Plaintiff and the Defendant. If the duty of fairness was to apply, the employee must be more than a mere employee; he or she must “hold an office.” This term had been interpreted to mean that the employee’s position must have involved an element of management as well as being endowed with a “statutory flavour”. The court held that there was an element of public employment or service to the Plaintiff’s position such that he was owed a duty of fairness and therefore had a right to a hearing prior to his employment being terminated. The court held that the Plaintiff was not given an opportunity to respond to Mr. H.’s allegations. Thus, the Defendant did not comply with its duty of procedural fairness in dismissing the Plaintiff from his employment.

The Plaintiff’s action was allowed and damages were awarded in addition to those which he was entitled in lieu of notice.

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