B.C. Supreme Court rules against divine dismissal

Even the most virtuous of employers can make costly slip-ups, as a Vancouver church just discovered.

B.C. Supreme Court rules against divine dismissal
Here’s something you probably didn’t expect: the British Columbia Supreme Court has ruled that the Vancouver Chinese Baptist Church owes a total of $84,520 to the senior pastor whose employment it terminated without just cause, in Kong v. Vancouver Chinese Baptist Church, 2015 BCSC 1328 (CanLII).

The Vancouver Chinese Baptist Church is a church and society with membership of approximately 800 people who, according to the Church’s by-laws, are “professed, regenerated and baptized believers into the fellowship” who are “expected to lead exemplary Christian lives”.  The Church’s leader is its Senior Pastor, who must be an ordained Baptist Minister.  Other Church officers include Deacons, Directors, and Department and Committee Members.

Reverend Alfred Yiu Chuen Kong was recruited by the Church when he was still preaching and living in China.  The Church promised to assist him with his move to Vancouver, and the employment agreement was to begin with a 12-month “adjustment period” for the Church and Rev. Kong both to determine the suitability of the relationship.

Rev. Kong began his employment with the Church on January 1, 2011, and since neither party noted any issues during the adjustment period, his role became permanent.  However, in 2012 difficulties arose between Rev. Kong and the Church’s two Associate Pastors, concerning managerial and communications issues.  A series of meetings were convened between the Church and its committees, along with Rev. Kong and the Deacons, including a “reconciliation meeting” in early 2013.  The essential purpose of these meetings was to monitor and assess the viability of the continued employment of Rev. Kong.

Rev. Kong was advised that the Church would be conducting performance appraisals on a regular basis, and that his performance would be among those reviewed.  He took exception to that practice, disputed the authority of the Personnel Committee to do so as well as disputing its authority to take any disciplinary or non-disciplinary measures whatsoever with respect to his employment.  The Associate Pastors both resigned in May 2013, which caused further tension in the Church. 

On June 8, 2013, Rev. Kong circulated an email to all members of the Church, setting out his concerns with what had taken place over the previous months.  The next day, on motion of the full membership, a “leaders group” was established to review the suitability of Rev. Kong as Senior Pastor.  In the course of that review, the group disseminated to the membership documents and information highly critical of Rev. Kong’s behaviour and conduct, and stating that he had not acted as a “good shepherd” for the Church’s membership. 

Accordingly, on June 12 the Church advised Rev. Kong that it had concluded he was “absolutely not suitable to continue to be the Senior Pastor.”  He was offered a chance to resign, but instead produced successive medical notes and took leaves of absences from employment.

The Church offered Rev. Kong with pay in lieu of six months’ notice of termination at the expiry of his sick leave on October 3, 2013.  Rev. Kong did not accept this arrangement, and instead brought a claim for wrongful dismissal damages, as well as aggravated damages and punitive damages.

The Court determined the quantum for general damages for wrongful dismissal by applying the typical common law factors, often known as the Bardal factors.  It found:
  • The role of senior pastor is a unique type of employment, such that comparison to other cases was not generally appropriate;
  • Age is seen as an advantage for leaders of many faiths, indicating wisdom, and making subsequent employment more likely;
  • Although Rev. Kong was employed for fewer than three years, the fact that a 12-month “adjustment period” was provided and completed, indicated an expectation that the position would be permanent;
  • The existence of a 12 month adjustment period reflected the potential difficulty associated with being found “suitable” and securing another similar Senior Pastor position;
  • The controversy surrounding Rev. Kong at his termination, even though not cause for termination, would negatively affect his future job search efforts.
Accordingly, the Court ordered the Church to pay general damages for wrongful dismissal in the amount of $54,520, having taken into account that Rev. Kong did secure subsequent employment.

Further, the Court held that the Church was “unduly insensitive” in the manner of its dismissal of Rev. Kong.  In particular, the Court ruled that the circulation of unproven allegations impugning the social and spiritual worth of Rev. Kong was unduly insensitive, and warranted an additional award for aggravated damages in the amount of $30,000 to compensate for the mental distress the church caused him.  The Court did not however order any punitive damages, since the Church’s actions, while unduly insensitive, were not “malicious and outrageous”.

The Court’s decision does not provide any thorough analysis regarding the appropriateness of judging the length of the reasonable notice period in this case by comparison to the “adjustment period”, and may not withstand scrutiny on appeal.  However, the more important lesson for employers is to take care to avoid acting in an “unduly insensitive” manner when terminating an employee’s employment.

In particular, employers should always avoid any conduct that may tarnish an employee’s reputation and make their subsequent job search more difficult.  Doing so may open the door for a court to assess a longer notice period and cost the company more money in damages for wrongful dismissal – notwithstanding that that kind of increase to a notice period seems remarkably similar to the way “Wallace” damages worked, a concept which was eliminated by the Supreme Court of Canada in Honda v. Keays.

In any event, it seems that in this case, if the Vancouver Chinese Baptist Church had paused to consider the Golden Rule, it could have saved itself $30,000.

For all other employers, you may wish to contact any of the experienced counsel at CCPartners to assist in determining the manner in which a termination of employment can be carried out, and how to do so in a way that is appropriately sensitive to the employee.

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