I worked for the duty free operator at the airport. While…

I was. I categorically denied the allegations and gave a written statement stating as such. Below is the demand letter I drafted based on my research. My question is basically... if my employer is only required to show a balance of probability that I took the item (an iPhone cover) to prove just cause, I worry that a video of me picking up an item and the subsequent inventory showing it missing, is enough. My next course of action would be to have the video thrown out. Is that possible?

Dear Madam:

Re: Termination of Employment of XXXXX XXXXX by
WDFG Vancouver Limited Partnership (“WDFG”)

I write regarding the termination of my employment with WDFG.

The material facts and circumstances relating to this matter include, but are not limited to:

1. On June 10, 2011, I commenced employment with WDFG as a Marketing Manager in Richmond, British Columbia.

1. During my employment with WDFG, I received only favorable performance reviews with ‘above target’ ratings and had never been subject to any disciplinary action. My reviews indicated that:

• I was a central figure in the Vancouver business, and increasingly influenced those who I came in contact with; and


• I was well respected by the marketing teams at Vancouver airport, in Spain, and the United Kingdom, and was seen as a key figure whose opinions were valued.

1. Between December 24 and December 29, 2014, I had a number of conversations and text message exchanges with Javier Bardon, Head of International Marketing for WDFG. The subject of these conversations was a job opportunity with WDFG based in Germany and Finland. I was asked to keep these conversations confidential.


2. Based on previous negative experience, I felt obligated to share the details of this ongoing dialogue with yourself and Craig Duncan, Vice President of Sales and Operations for WDFG Vancouver. Attempts to contact you by telephone were unsuccessful. I was able to reach Mr Duncan by text and telephone various times between December 29, 2013 and January 4, 2014. The only concerns expressed by Mr Duncan in these exchanges related primarily to when I found out, how long I knew, who I spoke to, who else knew about the offer and what was the timeframe for starting in the position. Concern was also expressed regarding the clandestine nature of the discussions and the implication that I was being manipulative and disloyal to WDFG Vancouver in my dealings with Mr Bardon.


3. On December 29, 2013, while waiting to board a flight and off-duty, I browsed through the WDFG stores and purchased a number of items.


4. On January 6, 2014, upon my return to work from vacation, I was invited by Mr. Duncan to a meeting to “bring me up to speed” on happenings within WDFG. This meeting was also attended by Ms. Debbie McKinlay, Human Resources Manager.


5. During the meeting, Mr. Duncan:

• stated that an investigation had been commenced into a missing Burberry iPhone case;


• showed me video surveillance of me entering the Burberry store and browsing items, including an iPhone case;


• stated that WDFG had conducted an inventory of iPhone cases and one was unaccounted for (Mr. Duncan did not provide any specific details about the product, the inventory, including dates undertaken, by whom, who witnessed the counts and the particular item counts by SKU); and,


• requested that I provide a written account of my time in the Burberry store.

1. That afternoon, I wrote a statement categorically denying the theft of an iPhone case.


2. That evening, I received a phone call from Ms. McKinlay requesting that I attend a further meeting the following day.


3. On January 7, 2014, I met with Ms. McKinlay and Mr. Duncan and was informed that WDFG had concluded its investigation and did not agree with my position that I did not steal the iPhone case.


4. Ms. McKinlay requested that I sign a termination letter stating that I had been terminated with just cause for theft. I reiterated my categorical denial of the allegation and refused to sign the termination letter. I later reluctantly agreed to sign it on condition that I write I did not agree with its contents. I also requested that WDFG file a complaint with the RCMP for investigation of the allegation. Ms. McKinlay indicated WDFG’s decision would stand, regardless of the outcome of any RCMP investigation. To date, I have not had any contact with the RCMP concerning any complaint.


5. On January 9, 2014, I attended WDFG’s office to pick up my personal belongings. Ms. McKinlay and Mr. Duncan refused to allow me to remove a number of items, pending their further investigation into my ownership of them. The estimated value of these items is $1,000.


6. On January 16, 2014, Ms. McKinlay emailed to advise having followed up with Mr. Duncan on the ownership of the items. She indicated that she would get back to me once she heard back from Mr Duncan. Despite further requests from me and the offer of third party verification of ownership, she has failed to respond positively or negatively with respect to the status of these items.


7. Shortly after termination, I filed a claim for Employment Insurance with Service Canada. On or about January 27, 2014, Service Canada made a determination in favor of me, accepting my version of events.

Legal Framework

Allegations of theft are held to the highest standard of proof. WDFG has not produced any evidence, video or otherwise, to prove its allegation of theft against me beyond a reasonable doubt. Given this, WDFG did not have just cause for which it could terminate my employment.

It is significant that in investigating my claim for Employment Insurance, Service Canada found that WDFG failed to prove beyond a reasonable doubt that I had stolen the iPhone case. Service Canada’s decision was based on an evaluation of the different versions of facts and evidence.

WDFG has breached the Employment Standards Act, including by, but not limited to:

• terminating my employment without cause; and


• failing to provide notice or payment in lieu of notice.

WDFG has also breached the termination provisions of my employment contract, which state that after 2 consecutive years of employment WDFG may terminate my employment by providing me with 8 weeks’ notice, or by paying me 8 weeks’ salary in lieu of notice.

Demands

Given the foregoing, I demand that by February 26, 2014, WDFG:

1. cause to be paid to me $17,297.17, for:

• 8 weeks’ severance pay in the amount of $8,815.94 (this amount reflects an estimated minimum pay increase for 2014 of 6%);


• the 2013 second half-yearly bonus in the amount of $4,865.40;


• the 2014 first-half yearly bonus, prorated for two months, in the amount of $1,586.87;


• vacation pay in the amount of $528.96; and


• pro-rated value of additional benefits, including, but not limited to, medical, dental, extended health, professional development training, and parking, in the amount of $1,500;

1. cause to be paid a nominal fee, in the amount of $1,000, for unreturned personal items, or, in the alternative, cause same to be returned to me; and


2. revise the termination letter to remove the allegation of theft, and provide a copy of same to me.

As a result of my wrongful summary dismissal, I have suffered extensive damages including the loss of a potential promotion within the company.

If payment in full of $18,297.17 and a revised termination letter is not received by the deadline, I will, without further notice to you, commence an action. If I am required to commence litigation, I will not only proceed against WDFG for the current balance due and owing, but also for lost opportunity costs and litigation costs. I also have cause for claiming aggravated and punitive damages, which would indicate an even higher severance payment at the highest range as awarded in British Columbia.

This matter requires your immediate attention.

Thank you very much for the reply. However, you actually never answered my question.

1.) My employment contract provides for 8 weeks notice after 2 consecutive years of employment. (I was a senior manager.) That's where I got that from.

2.) I have already confirmed with the Employment Standards Branch that bonuses tied to performance are treated like commissions and are awarded by the courts.

My question to you was: If balance of probability is the standard of proof and video surveillance footage is being offered as that proof, given that I was off-duty, and neither informed nor gave consent to any video surveillance being conducted, is there the possibility of complaining to the Privacy Commissioner under PIPDEA or PIPA to have these videos excluded as evidence?

Thanks again for your reply. It's not that I just don't like your answers but your information doesn't seem to correspond with the details I am finding from other sources. The Office of the Privacy Commission has this posted on their website:

What Does a Private Sector Organization Have to do When it Uses Video Surveillance?

These guidelines specify that when organizations in the private sector use video surveillance, they must at minimum, comply with the requirements of PIPA (BC) (or PIPA (Alberta) or PIPEDA.
This means they must:

1. post a notice about the use of the cameras which is visible at or before the time the individual enters the premises, so that the individual may chose not to enter if they do not wish to consent to being videotaped. The organization can assume that you have consented to being videotape if you go past the notice and into the premises (this is called ‘implied consent’);

For the bonus... the bonus was earned from the period July 2013 - December 2013. It was due to be paid on my next paycheque but I was terminated prior to it being paid. I had already been advised of the bonus amount prior to termination. The bonus was therefore earned but not paid. It should then be included, no?