IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Kim v. International Triathlon Union, 2014 BCSC 2151 Date: 20141119 Docket: S133061 Registry: Vancouver

Between: Paula Kim Plaintiff

And 2014 BCSC 2151 (CanLII)

International Triathlon Union Defendant

Before: The Honourable Mr. Justice Cohen Reasons for Judgment

Counsel for the plaintiff : E. C. Chow J. Janis

Counsel for the defendant: A.A. Raso C. Drake

Place and Dates of Trial: Vancouver, B.C. May 5-7; September 3-4, 2014 Place and Date of Judgment: Vancouver, B.C. November 19, 2014

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1. The Plaintiff’s Action

[1] The plaintiff, Ms. Paula Kim, brings this action against the defendant, International Triathlon Union (“ITU”), for wrongful dismissal. The plaintiff alleges that “suddenly and without advance warning, on November 20, 2012, ITU terminated the employment of the plaintiff without cause.”

[2] At the time of termination, the plaintiff was provided with two weeks of base salary in lieu of notice pursuant to the BC Employment Standards Act. She was offered payment in lieu of additional notice only if she provided ITU with a signed release. Her Group Medical Services Plan benefits were cut off at termination. 2014 BCSC 2151 (CanLII) According to the plaintiff, ITU neither offered nor provided a reference for the plaintiff.

[3] The plaintiff alleges that her dismissal was conducted unilaterally and without warning, which constitutes a wrongful dismissal of her from employment with ITU without just cause and without reasonable notice, and a breach of the implied term of her employment to provide reasonable notice.

[4] At the date of her termination, the plaintiff, age 34, was receiving or entitled to receive the following remuneration from ITU: a salary of $77,000 per annum, vacation entitlement of 25 days per annum, travel expense reimbursement, contribution to Canada Pension Plan premiums, and Medical Services Plan benefits via the ITU Group Plan.

[5] This was in fact the second of two periods of employment of the plaintiff by ITU, the first of which began in 2007 and ended in late 2008. Her second period of employment with ITU began in early January 2011. After her termination, aside from her employment in connection with the Sochi Olympics for nine months, the plaintiff remained unemployed until August 6, 2013, when she accepted a position as the Senior Manager of Press Communications for the Toronto 2015 Pan American Games.

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[6] The plaintiff says that as a result of ITU’s wrongful dismissal, she suffered a loss of employment income from the date of her dismissal to the present, and will continue to suffer a loss of ability to earn income in the future.

2. ITU’s Defence

[7] In ITU’s Response to Civil Claim filed June 7, 2013, ITU alleges that the plaintiff was not wrongfully dismissed and is not entitled to damages. It says that contrary to the plaintiff’s allegation that she performed her duties as Senior Manager of Communications well and in good faith and proved to be a valuable employee to

ITU, ITU received formal complaints from other triathlon organizations with which the 2014 BCSC 2151 (CanLII) plaintiff had contact, with respect to the plaintiff’s unprofessional conduct and negative attitude. ITU says further that the plaintiff made derogatory and defamatory comments about management on social media, which conduct was reprehensible given the plaintiff’s position of Senior Communications Manager. ITU says that these facts are pleaded not in support of an allegation for cause, but rather in response to the plaintiff’s allegation that on November 20, 2012, she was suddenly and without advance warning terminated from her employment with ITU.

[8] ITU also pled that the plaintiff was not wrongfully dismissed and is not entitled to any damages for wrongful dismissal.

[9] In ITU’s Amended Response to Civil Claim filed February 17, 2014, ITU amended its pleadings to remove the allegation that the facts pleaded were not in support of an allegation for cause, and pleaded that it had cause to terminate the plaintiff’s employment. Specifically, ITU alleges that the plaintiff’s conduct in the months leading to the termination of her employment was unprofessional and insubordinate.

[10] ITU submits that the plaintiff irreparably harmed the trust inherent in the employment relationship through her unprofessional and insubordinate communications that were far-reaching and accessible to those throughout the triathlon sport community. ITU says that when the plaintiff’s conduct is viewed using the contextual approach and the test of proportionality, the only appropriate

Kim v. International Triathlon Union Page 4 response is dismissal for cause. Given her position with ITU, the plaintiff was the voice of ITU, in a professional and managerial role, which heightens the severity of her communications. It claims, that the decision to terminate the plaintiff’s employment was done after Ms. Loreen Barnett, then Secretary General of ITU, and the plaintiff’s boss, attempted to warn the plaintiff about her inappropriate communications to no avail.

[11] ITU submits that if the Court finds that it did not have cause to dismiss the plaintiff for cause, then the period of notice owing to the plaintiff is minimal,

particularly given the plaintiff’s age, short length of service (and her movement from 2014 BCSC 2151 (CanLII) contract to contract indicating that she desired and was well accustomed to short term employment and obtaining new employment), and her failure to make all reasonable efforts to find alternative employment.

3. Issues

I. Was the plaintiff wrongfully dismissed?

II. If the plaintiff was dismissed without cause, what is the appropriate amount of damages payable to her in lieu of reasonable notice?

4. Summary of the Evidence

A. The Plaintiff

[12] The plaintiff has a journalism degree from Ryerson University in Toronto with a major in broadcasting. She has worked with the media, predominately in the field of sports.

[13] The plaintiff testified that she has a passion about sports and felt it was a perfect way to combine her journalism degree with sports as a career.

[14] ITU is the international governing body for the multi-sport disciplines in triathlon. It sets the schedule for international triathlons, the rules for competition and the amount of prize money, and operates the certification program for officials. The ITU Congress is the general assembly of the members National and Continental

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Confederations of ITU and its highest authority. Congress is organized annually, generally in connection with the World Triathlon Grand Final. Elections to Congress are held every four years in the year of the Summer Olympics. The President of the Executive Board is Ms. Marisol Casado, who resides in Spain.

[15] In late 2006, the plaintiff replied to a job posting and travelled to North Vancouver from Toronto for an interview with Mr. Brian Mahony, ITU’s Director of Media, and Ms. Barnett. For the plaintiff it was a title promotion and overall a “fantastic” opportunity for her to work in the sports entertainment industry. 2014 BCSC 2151 (CanLII) [16] In Toronto, the plaintiff worked at the Discovery Channel and part time or freelance for the Toronto Raptors. Her income was in the $50,000 range. Her initial salary at ITU was $57,000. She worked with the media and wrote press releases, athlete biographies, web stories, and the ITU newsletter. She described her work as being really hectic from the outset of her employment. She claims that she worked 90 hours a week during the busy part of the season that was from late March until early December. The work was more stressful and demanding than she had experienced in Toronto.

[17] The plaintiff said ITU felt like a family run business, casual, informal, and everyone was friendly with one another, and that a casual style was encouraged. She also said that there was no social media policy. She mentioned that the ITU used Facebook and the Internet. The plaintiff was on Facebook and had a blog that she started to keep her family and friends in Toronto up to date about her life in Vancouver. She said that the other employees of ITU knew about her blog, including Ms. Barnett.

[18] The plaintiff said that she usually took her vacation at the end of the year. This made more sense for her because there were few opportunities to take any time off during the season. The plaintiff testified that job performance was not discussed in a formal manner. It would be casually mentioned to her verbally that she was doing a good job.

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[19] The plaintiff left her position at ITU in early February 2009. She was offered and accepted a position as a senior publicist with EA Sports. She felt it was a good opportunity for her career. She said that Ms. Barnett wanted her to stay with ITU and made a counteroffer, but the plaintiff chose the EA Sports position over ITU as it was an opportunity for her to work in a large company so as to develop, grow and expand her career in a different kind of work environment. The job included her chance to work on a tennis franchise, and she thought it would be a great step in her career.

[20] The plaintiff said that she left ITU on good terms, and that she remained 2014 BCSC 2151 (CanLII) friends with Ms. Barnett, and some of the other employees, although she saw them a lot less. She said that her relationship with ITU was so positive that she was asked to do some freelance work. In fact she did some paid contract work for ITU in 2010. As well, Ms. Barnett wanted the plaintiff to carry on writing the ITU newsletter, which she did and received payment for her work.

[21] The plaintiff left her position with EA Sports in August 2009. She said she realized that the job was not for her. She let ITU know that she had left EA Sports. She heard later that ITU was considering hiring a person part time for some administrative work. She spoke to an employee at ITU and told her she was receptive to the position, but the concern was that the job would be beneath her skill level. She also offered to attend an ITU meeting in Australia in place of this employee. However, she did not end up going to Australia.

[22] In late 2010, Ms. Barnett asked the plaintiff to take on some work relating to the ITU annual book, and in 2011 the plaintiff did some contract work for ITU in this regard. The plaintiff also wrote some press releases and travelled to two events. She said it was an easy transition back into ITU.

[23] From November 2009 until February 2010 the plaintiff worked for VANOC in connection with the 2010 Winter Olympics, as well as taking on a couple of jobs overseas. During this timeframe Ms. Barnett told the plaintiff she would like to have her return to ITU full time. She had also been approached by Rugby New Zealand,

Kim v. International Triathlon Union Page 7 but in late 2010 she chose to return to ITU because its offer came to her first. The offer from ITU was the position of Senior Manager of Communications at a salary of $65,000. She asked for $70,000, and an agreement was reached at $70,000 for the first year and $72,000 for the second year, with discussions to follow regarding future years compensation.

[24] In early January 2011 the plaintiff returned to full time employment with ITU. She said it was like “coming back home”. She felt comfortable and at ease. She stepped into a position that was essentially her old role, with a new title, more

responsibility, and reporting directly to Ms. Barnett. She said that the work was 2014 BCSC 2151 (CanLII) intense and that she was working 90 hours a week, sometimes 95.

[25] The plaintiff testified that she spoke with Ms. Barnett about her vacation. She said that she asked, and Ms. Barnett agreed, that her vacation days would not be strictly counted and that Ms. Barnett was not concerned if it amounted to more than 25 days. In an email to the plaintiff dated June 29, 2011, Ms. Barnett said, in reply to a proposal from the plaintiff that she not have to keep track of her vacation days, “Absolutely – what I said today at the staff meeting was more for their benefit. I do not intend on counting days. The policy that we are drafting says 25 working days plus stat holidays – add in your days in lieu and there is lots of flexibility.”

[26] The plaintiff said that on her return to ITU she found the workplace still casual, informal, like a family atmosphere. She also said that the employees gossiped about athletes, staff at other federations, and general office gossip. She socialized with the other staff, going out with them for dinners and movies.

[27] In early 2012, ahead of schedule, the plaintiff received a raise in her salary to $75,000. By the time she was terminated her salary had increased to $77,000. She said these raises in salary had a lot to do with the increased time she was spending at work, and she assumed that ITU was satisfied with her work. She felt that it was a measure of how much ITU valued her employment. There was no formal or verbal performance review. She said that her style of work was the same as it was during the first period of time she had worked for ITU. She said she could not recall being

Kim v. International Triathlon Union Page 8 spoken to by ITU about her work style. She felt that she was encouraged to be formal when she needed to be, but otherwise her style was pretty casual and informal. She said that no one at ITU spoke to her about her communication style. She said that there was no written contract on her return to ITU, and no communication, social media, or internet use policy. She never saw an employee handbook.

[28] At the time, the plaintiff was on Facebook, had Twitter accounts and a blog. She said that most of the ITU employees were her Facebook friends. She had two

Twitter accounts, one called PK 24/7, which was a personal account, and the other 2014 BCSC 2151 (CanLII) being Paula Kim ITU for triathlon matters. She said that at one point, Ms. Barnett asked her to remove the reference to ITU in her Twitter handle and then she was free to say what she wanted. She then stopped using the Paula Kim ITU account.

[29] Specific reference was made to three tweets from the plaintiff’s personal Twitter account, and one Facebook message: the Facebook message, written in late October 2012 after the world championships wrapped up on October 23, read: “2012 ITU season…DONE. now leave me alone until 2013!!”; the three tweets (one without a date, one dated October 22 and the other November 4 read: “surprisingly fun congress after-party last night. probly [sic] only time I’ll see so many Eboard members hungover & lamenting those tequila shots”; “I wonder if other IF congresses have as much propaganda as ours…”; and finally, “hey ITU, remember this next time I fly off the deep end…‘@Relationship 1O2: If I didn’t care, I wouldn’t get mad.’”

[30] With respect to her Facebook message, the plaintiff said that it was written in a facetious joking manner reflecting her sense of humour and that it was her trying to be funny. She said that the ITU employees were familiar with her facetious, joking manner. She said this message was never discussed with her by anyone from ITU.

[31] As for the tweets, the one regarding the ITU Congress was written around October 23, 2012. She had spent some time at the after-party and she wrote it just to say that she had a fun time with staff and that it was a reflection on an

Kim v. International Triathlon Union Page 9 atmosphere and environment in which the ITU and federations interacted. She said that there was no comment from anyone about this tweet, and no indication that it was inappropriate.

[32] Regarding the second tweet, she said that she had never worked for another international federation and that by using the word “propaganda” she meant marketing or messaging, and that its use was her ironic sense of humour. She said she found it a “funny” word and that she did not receive any comments about this tweet. 2014 BCSC 2151 (CanLII) [33] As for the third tweet, she said that everyone knew she was passionate about her job and cared deeply about her work and this tweet was her way to explain why she was so emotional. She said she did not have any ill intention with this tweet. She did not hear from any ITU staff, but did receive a tweet from one athlete. There was no indication that this tweet was frowned upon.

[34] The plaintiff testified about a disagreement between her and Ms. Barnett over the work performance of another ITU employee. She spoke to Ms. Barnett about this employee, and expressed her concern about his ability to do his job. She said that at first Ms. Barnett felt there was an upside to having him as an employee, and that he should be given a chance, but that eventually Ms. Barnett came to agree with the plaintiff’s opinion. The plaintiff said she felt strongly about her concern. She also said that at one point Ms. Barnett told her in an email dated August 12, 2011, that she was not comfortable with the language she was using in her emails to Ms. Barnett. Ms. Barnett felt this was because the plaintiff was exhausted from work and frustrated over their disagreement.

[35] The plaintiff said that after Ms. Barnett came around to her point of view. She found a writing coach for the employee and did a formal job performance and placed him on a performance plan. In an email to the plaintiff dated August 31, 2011, Ms. Barnett wrote to the plaintiff stating, in part, “However, moving forward, I know we can build a really powerful communication platform with you at the helm – and

Kim v. International Triathlon Union Page 10 one that is sustainable for you and the other future members of your team, as well as one that is on the plus side of satisfying for you.”

[36] The plaintiff said that this disagreement did not hurt her relationship with Ms. Barnett and that on the occasions when they did disagree, it was with the best of intentions for ITU and that their disagreements were always resolved and they would move past it.

[37] There was another disagreement between them over the front page of the ITU website. Ms. Barnett had changed the front page without consulting with the 2014 BCSC 2151 (CanLII) plaintiff, and the plaintiff felt that any such change was her decision. This upset her and she spoke to Ms. Barnett about the matter. The plaintiff was matter of fact and to the point and Ms. Barnett told her that she would not do this again in the future. The plaintiff said that they reached an understanding as to how to handle such matters and that they moved on. She did not believe that this disagreement hurt her relationship with Ms. Barnett.

[38] The plaintiff said that Ms. Barnett never told her that she was too emotional, and she assumed that she liked the plaintiff’s passion for her work. She said that Ms. Barnett liked strong women in leadership roles, and noted that ITU had women at the top two positions of power in the organization and that this was a point of pride. She said it was always part of her job to feature women as much as men on the ITU website.

[39] The plaintiff explained that near the end of 2011 she took a side contract to work for the Arab Games in Qatar. This was an approximately four week long contract and she was paid a lump sum. This is how she used part of her vacation time in that year. She said that Ms. Barnett had no problem with this arrangement, or the fact that the plaintiff was being paid by the Arab Games while she was on paid ITU vacation. The plaintiff felt it would help to make her a stronger press manager and she could promote ITU events. In fact, ITU hosted a reception at the event and the plaintiff was pleased to help.

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[40] The plaintiff testified that she and Ms. Barnett agreed in early 2012 that the plaintiff would take all of her vacation time at the end of the year, as she had done in 2011. She told Ms. Barnett that she wanted to take her vacation in the months of November and December, 2012. She offered to take one month of paid vacation, and one month unpaid. According to the plaintiff, Ms. Barnett said no, that ITU would pay her for both months to which the plaintiff replied, “great”. Ms. Barnett then told the plaintiff to keep this arrangement between them and another ITU employee by the name of Adrienne Proseilo.

[41] However, the plaintiff said that a disagreement arose between her and 2014 BCSC 2151 (CanLII) Ms. Barnett over the arrangement they had agreed to earlier in 2012 about compensation for two months of vacation at the end of 2012. At the September ITU staff meeting, Ms. Barnett announced that the plaintiff would be off work for two months. She sent the plaintiff an email as to how to formalize the two months off, suggesting that the time off would be one month with pay and one month without. The plaintiff told Ms. Barnett that this is not the arrangement they had agreed upon. The email is dated October 4, 2012, wherein Ms. Barnett wrote to the plaintiff, “Hi Paula – we still need to formalize your November/December holidays/leave. I think it would be best if we paid your normal monthly rate for November, and declare December an unpaid leave (when you also have a job with Sochi).” A series of emails were then sent by the plaintiff to Ms. Barnett about this matter and in her email of October 4th at 11:12 a.m. she said, ”And it was 2 months paid leave…I distinctly remember because when I proposed it, I suggested 1 month paid leave, 1 month unpaid but you said, no it’s fine we can make it 2 months paid (but we should keep it between you, me and [Ms. Proseilo]) because of all the weekends I work and because Nov & Dec would be the deadest months of the year as there’s almost no events. I was surprised you agreed to 2 months paid but I certainly wasn’t going to argue with it. So it’s pretty disappointing that now we’re in October, I’ve given my entire year and my sanity to ITU and suddenly this is an issue. Also Sochi job is 9 days, it’s not like Doha last year.”

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[42] The plaintiff explained that the Sochi job did not become official until after she was terminated by ITU. Before this she had not yet received a formal contract or offer. Following her work in Sochi she was paid $3,300 Canadian dollars. The contract was from January 25, 2013 until February 7th of that year.

[43] On October 5, 2012, the plaintiff wrote a piece on her blog titled “taking shit”. The content of the blog is as follows:

…i rarely go home and rarely call because deep down i have never forgiven her and because i remember all too well all the beatings i took. my mother is the only person on earth that was so skilled as making me feel like an

insignificant bag of shit and made me feel as though I was never good 2014 BCSC 2151 (CanLII) enough, for anything. until today. today for the first time in a long time i felt like that kid all over again; beaten, discouraged, alone and scared, after the most disappointing conversation you could possibly have with your boss. the same horrible, sickly feeling of someone above you kicking you down with lies and senseless put downs and insults and zero reality all flooded back in a horrible, despicable wave of nostalgia. and for the first time in many years i actually sobbed (by myself in the bathroom of course) which i almost never do. and of course she’s right, how can i possibly be right when i’m not the authority figure! just like when i was a kid, i don’t feel like I’ve done anything wrong but it doesn’t matter because this person that i stupidly thought cared doesn’t give a shit and just wants to beat my head in. her perception of reality is so clouded and distorted that all she sees is her own version and not the real version of truth. in the end some people will only believe what they want to believe and and [sic] not what’s real. these same people will never find fault in their own actions, no matter how wrong and inappropriate it was. my mother never once apologized to me, and i don’t ever expect one. in fact she used to say it was my fault that she hit me, that i drove her to such anger. how do you argue with that? you can’t, and never will. you can’t fight logically with an illogical person. some relationships will never rebound from such abuse. never. and if i was 9 again i would stupidly ask why, but i’m older and wiser now so i don’t bother to ask why, because i already know the answer; sometimes life just isn’t fair. sometimes people change for the worst and sometimes people are just evil pieces of shit and just need to bring you down to make themselves feel more powerful or better than you. not being good enough is probably my deepest insecurity, all thanks to my mother. haunted by this feeling as a kid, i broke free of it slowly through university and then most importantly as an adult in the working world. but now thanks to my current boss, it is back in full force. and as my former colleague used to say, the spirit is broken.

[44] The plaintiff testified that she felt she had an agreement with Ms. Barnett and that her conversation with Ms. Barnett was disappointing and reminiscent of disagreements she had with her own mother. She said that she had had

Kim v. International Triathlon Union Page 13 disagreements with Ms. Barnett in the past, but not to this level. She said that the people who read her blog were close friends. She said it was a kind of emotional look into her past and easier for her to put her thoughts in writing. She testified that no one at ITU asked her about or talked to her about the blog post, other than Ms. Proseilo who spoke to her out of a personal concern and asked her if she had sought help or talked to her mother. She said that her relationship with her mother was turbulent, up and down, not black and white and that all emotions were from the heart. She also said that Ms. Barnett reminded her of her relationship with her mother, stating that she was an authoritarian figure. She said that Ms. Barnett worried about her staff like a mother does for her children about their health and 2014 BCSC 2151 (CanLII) well-being. The fact that she was going to lose this argument with Ms. Barnett over her vacation pay was discouraging.

[45] In an email dated October 5, 2012, at 10:53, Ms. Barnett told the plaintiff, “…thank you for this. Bottomline – I believe in you. We can find a way, for sure. More to come once I get my morning meetings off my back.” The plaintiff testified that she had sent Ms. Barnett a lengthy email to tell her about her disappointment and that she had said some things she should not have. She felt that the response from Ms. Barnett was optimistic and they would be able to resolve the matter and that they were back on the right track to find some resolution.

[46] The plaintiff met with Ms. Barnett on October 5th. She said that the plaintiff had to be in the office as much as possible in November and December, which surprised the plaintiff because there were not events scheduled and Congress was over. This made the plaintiff feel even more discouraged and disappointed, as this was the complete opposite of what they had agreed upon. They had an exchange of emails and in the end they made an arrangement for the plaintiff to take vacation time and to be in the office as much as possible. The plaintiff mentioned that in October she was in Auckland for a World Championship and stayed on for the Congress. After the events wrapped up she flew to Singapore to take some vacation and returned to the ITU office on November 20th.

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[47] The plaintiff referred to some tweets she wrote on her personal Twitter account in August 2012, which read as follows:

 will prob get in trouble for this but i dont care; team tactics failed. the 6 medallists were on podium  now UK media can stop asking me if the brownlees intentionally tie for gold, will they get disqualified. get over it, gomez had jonny beat!!  what a day in hyde park today, crowds were insane! and the best men won the hardware. so so so happy for Jgomeznova well deserved!!  holy crap … alistair ran 29:07 10km!! first 5km was clocked at 14:14, competition manager john lunt is adamant it is an accurate 10km.  all that talk about brownlees intentionally tying for gold all seems a bit 2014 BCSC 2151 (CanLII) arrogant now…because Gomez was solid in silver position  medal ceremony delay was because jonny brownlee in medical. press conference has yet to start …  the daily mail thinks because i clarified ITU rules with them, that means “ITU warned the brownlees” not to contrive a tie. logic is where??  And for the women’s race: you should read this http://olympics- 2012.si.com/2012/08/04/brits-triathlon-tactics-fail-at-hyde/... (taken down now on: http://m.si.com/news/wr/wr/detail/5138770)  officially, the race referee’s ESTIMATE was that spirig was ahead of norden by 15cm #london2012  attn media - first pics of women’s race is now up on ITU Online Media Centre. credit: delly carr/ITU

[48] The plaintiff testified in relation to the tweet about the Brownlee brothers that she was trying to be helpful to the athletes, and that she did not think these tweets would be controversial, but that she had no control over how other people interpret her words. In her tweets she felt she was being complimentary, and she tried to maintain equal compliments across the board. She said that she never said anything that did not have respect for the athletes, and she always made sure that the athletes came first.

[49] The plaintiff also referred to a letter dated October 22, 2012, to Ms. Barnett from Ms. Zara Hyde Peters, Chief Executive of the British Triathlon, that reads, as follows:

Dear Loreen

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Firstly can I congratulate you on behalf of all at British Triathlon on your re- election. We look forward to working with you closely in the future. However, I am writing further to concerns raised regarding public communications from ITU staff. Having spoken to both Sarah and yourself, I am now following up with the detail as discussed. Specifically, I would like to raise concerns expressed by our leading athletes regarding the actions of current ITU Communications Director, Paula Kim. When I raised the initial issue, it was mainly concerned with the Olympic Games racing - but this weekend in Auckland has further aggravated concern. The following pages are an excerpt from the twitter feed of PK24k7 - an account openly held by Paula Kim. In the feed, which specifically pertains to the build up to, and the results of the men’s Olympic race, she expresses certain strong personal views - so strong that in one tweet she suggests that she will “probably get into trouble for this”. Paula is entitled to her own

personal view - as we all are. That view appropriately expressed through well 2014 BCSC 2151 (CanLII) chosen privately spoken words would be of no concern. However when a member of staff shows so little regard for the importance of correct and neutral communications…and worse when that person is responsible for the ITU communications policy, I am truly horrified. At one level, the damage could be construed as more principle than actual harm, but there is no doubt that since the Olympic Games, both Alistair and Jonathon Brownlee are entitled to believe that Paula - and hence the ITU - has little respect for them as a result of her actions. With one athlete as the reigning Olympic Champion, and the other, the current World Champion, I would suggest that this is not where ITU would want its relationship with two of its leading male competitors, nor their parent federation, to be. The tweets from PK247 were of a similar vein this weekend - effusive in personal praise for some athletes and showing a startling lack of balance. At a federation level, the ITU Communications Director signposting readers to an article criticising British Triathlon is both offensive and unacceptable. I am sure that you share my concerns over the unprofessional actions of a member of your team. Please accept this letter as a formal complaint.

[50] The plaintiff testified that she has known Ms. Peters since 2008 and said that she may have seen her in Auckland at a press conference where they exchanged some small talk. She disagreed with the final sentence of the last paragraph of the Peters letter. She did not think that by posting the article she agreed or disagreed with the article. She just thought it was an interesting story.

[51] The plaintiff testified that she had never written anything and presented it for approval and heard that it was not neutral. She knew it had to be neutral. She said that the Peters letter was only shown to her at her examination for discovery after she was terminated.

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[52] The plaintiff referred to a letter dated November 1, 2012, to Ms. Barnett from Mr. Dave Beeche, CEO of the Auckland World Triathlon. The letter reads:

One exception I would however like to draw to your attention was the ITU Media Manager Paula Kim. Unfortunately we found Paula very difficult to work with and felt that she made things unnecessarily challenging for our media manager. There was a command and control attitude in her approach to working with us and an unwillingness to either compromise or work with us on resolving issues. We felt many of both her email and phone communications were overly directive. In addition we felt there was an unwillingness to support new ideas, contribute much time to the event, and really assist in driving the media coverage for Auckland. Her approach and style was certainly not the partnership approach we enjoyed with the rest of the ITU team. 2014 BCSC 2151 (CanLII)

[53] The plaintiff knows Mr. Beeche and said he is an important stakeholder. She did not know about his complaint. No one mentioned it to her while she was in Auckland. When she left Auckland he thanked her and complimented her on doing a great job. She could not explain the content of his letter. She said that her relationship with the media manager was good and that everything between them was quite professional. They did not disagree or have a dispute on any matter. She said that she never forced an athlete to do an interview and that she was strong on this position. She said she was caught in the middle between promotion of the race and what was in the best interests of the athletes. She said that while the media manager was disappointed and frustrated with her position, he understood. She said that Mr. Beeche’s letter was brought to her attention after she was terminated. No one at the ITU spoke to her about it while she was still employed.

[54] The plaintiff also testified about an email from Mr. Ria D. Nilsson to Ms. Barnett dated October 10, 2012, which reads, as follows:

Hi Loreen, I have looked into the situation that you mentioned. Here is what I have found out. It was Sunday during the race and Paula comes into the race office in Myntmuseum, (where we have the deal to use some of the rooms for our event staff, meetings, workrooms and media rooms, it was right at race site and perfect for all of us.) ------REDACTED FOR PRIVACY ------during the event, the police had to also use that office. And it was agreed.

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Sunday, sometime, Paula comes up to the office and get really mad, yelling and picked up a bowl of candy, throw it into the wall and say that this room was the ITU media room, and that it was not a room for everyone. I can not work in here. So that is the story that I have heard about the situation. Not very professional from her side, but I understand that she probably was really tired and stressed for some reason. But unacceptable to throw a bowl into the wall … We all had to use the rooms in that museum as good/efficient as possible, the big one that she used also had the printers in it, so that could also have made her irritated since people had to go in there to get the papers they printed. This year was exceptional in many ways, very little time for preparations and negotiations to get offices etc. But everyone really tried to manage as good

as possible during these circumstances. Next year we can plan better. 2014 BCSC 2151 (CanLII) So, I hope that can give you a better picture of the incident. I also have to mention that ---- have had some issues with her, and one is not to give him access to the media page on the ITU page, so that he can use the pictures for press releases materials etc. I do not know why and ----- REDACTED------Thank you and see you soon in NZ. kind regards, Ria

[55] The plaintiff testified that she had a very polite, professional relationship with Mr. Nilsson. She said that the room was a nightmare and an unprofessional place to work. She threw some things in the garbage while she was cleaning up the room and some items fell onto the ground. She also explained the matter of restricting photo usage and restricted access as she was attempting to limit misuse of ITU photos.

[56] The plaintiff said that she did not know that Ms. Barnett was looking into the incident referred to in the email from Mr. Nilsson and that his email was brought to her attention after she was terminated.

[57] When the plaintiff returned to the ITU office on November 20, 2012, following her vacation, her employment was terminated. She met with Ms. Barnett and Mr. Mahony. Ms. Barnett told her that her communication style was not in line with ITU and that she was being terminated. The plaintiff testified that she had never been told this before in those words. She had been told at times that she was

Kim v. International Triathlon Union Page 18 opinionated. She said that all of the opinions she wrote were always on par with what ITU wanted to convey. She said she had no idea that this was coming and that it was very shocking to her. The termination letter delivered to the plaintiff by Ms. Barnett reads, as follows:

As we discussed during our meeting today, this is to confirm that your employment with ITU will terminate effective immediately. Within 48 hours, we will provide you with all outstanding wages and vacation pay owing, along with 2 weeks of base salary in lieu of notice pursuant to the British Columbia Employment Standards Act. In recognition of your service with ITU, and to enable you to find alternative employment, we will continue to pay your base salary, on a salary 2014 BCSC 2151 (CanLII) continuance basis in the normal course until 31 December, 2012. As you know, you are not eligible for benefits as you declined all coverage. This payment is conditional on you signing the attached “Full and Final Release”. Please return the signed Release to us within 48 hours. This should allow you sufficient time to seek independent advice, but should you require additional time, please let us know. If you do not sign the attached Release, ITU will make no payments to you beyond your statutory entitlement of 2 weeks. Please return all ITU property, including cell phone, laptop, documentation, hard drives and computer files to us immediately. We will be happy to pay for courier costs for the return of these items. We remind you of your continuing confidentiality obligations with respect to all proprietary information of ITU. We wish you well in your future endeavours.

[58] The plaintiff said that she was so shocked that she could not think straight and had to calm herself down. She wanted to seek guidance and advice from a lawyer. She was paid her remaining vacation days, plus two weeks of her salary.

[59] The plaintiff referred to some tweets she sent after she was terminated which referred to a former President of the ITU and her former boss in Toronto. She testified that the tweets were a joke and reflected her sense of humour.

[60] The plaintiff said that she started looking for a new job on November 20, 2012. She reviewed a lot of websites and scoured the internet. She started by looking for job openings in the area of sports and communication. She also considered public relations, media and broadcasting. She said there were no jobs

Kim v. International Triathlon Union Page 19 comparable to the one she held at ITU available in Canada. The ITU is the only international sports federation based in Canada.

[61] The plaintiff kept a log of her job search. She was offered a position in early July 2013 with the Toronto 2015 Pan Am Games, and she did work the short contract in early 2013 in Sochi. She started her new job in Toronto on August 6, 2013. She had no steady income between her termination and her new job, with the exception of the compensation she received from working in Sochi.

[62] The plaintiff said that she was looking for something specific. She brought a 2014 BCSC 2151 (CanLII) special skill set and wished to keep working in the field of sports and public relations where her career had been focused, although she did apply for openings outside this realm.

[63] The plaintiff’s salary at her new job is $105,000, plus benefits and a performance bonus based on the employer meeting its financial targets. The bonus is up to 10% of base salary payable after the fiscal year end. At the time of testifying she had not heard whether the bonus will be paid to her.

[64] The plaintiff said that the termination by ITU was extremely stressful and frustrating for her. She had not received a warning, and there was no performance evaluation, as had been the case for the other employee who was the subject of her disagreement with Ms. Barnett. She had never been reprimanded, nor put on a performance plan, and it was extremely shocking for her to be terminated and all of the complaints came to light after she was terminated. She felt depressed and confused. Some people suggested she consult a psychologist but she did not. She had trouble sleeping.

[65] The plaintiff said that when she was told that ITU was alleging cause she was confused. She did not understand why this was being alleged so late in the process as she was not told when she was employed at ITU of the matters that were now being raised. She said that if she had been told she would have changed and behaved differently, but she was never given that opportunity.

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[66] In cross-examination, the plaintiff explained that Ms. Barnett was the most senior person in the ITU office and that the next in command were the directors followed by the managers, including herself. The plaintiff did not report to the directors but directly to Ms. Barnett.

[67] The plaintiff agreed that her employment history was one of short stints by choice. She said that in her second stint with ITU she intended to stay longer than two years. She also mentioned that she had some issues with her former boss at the Discovery Channel whom she found difficult to work with. 2014 BCSC 2151 (CanLII) [68] The plaintiff has worked in communications and was trained in journalism and she understands the importance and accuracy of the written word. She is a media specialist, specializing in working with the media. She understood that as a media specialist she is to be objective, but noted that the boundaries of what is acceptable is being tested and is not a black and white matter. At ITU she wanted to be part of the messaging and noted that after she raised her concern with Ms. Barnett over the change of the website without her knowledge that it did not happen again. She also noted that she was not the spokesperson for the ITU and that when she did write it was subject to approval, but that after she wrote it, it was on behalf of ITU.

[69] The plaintiff said that in the fall of 2010 she was looking at job options and decided that whichever offer came first she would accept. She agreed that if the Rugby New Zealand offer came to her first she would have accepted it as she was looking out for herself.

[70] When she started her job at ITU full time in January 2011, benefits were offered to her but she declined them as she wanted to think about it and while she meant to enroll in the benefits plan she never got around to it. She conceded that she declined to enroll in the plan because of the cost when it was first offered, but said that later she thought it might be something she should do.

[71] The plaintiff agreed that when she was hired full time in January 2011, she understood that she was entitled to 25 vacation days. Defence counsel referred the

Kim v. International Triathlon Union Page 21 plaintiff to her email dated June 28, 2011, to Ms. Barnett about not keeping track of her vacation days. She said that she felt that Ms. Barnett always had her back. She said that Ms. Barnett understood the fact that the plaintiff worked long hours and Ms. Barnett went out of her way to make it known that the long hours were recognized. Ms. Barnett replied to the plaintiff in an email dated June 29, 2011, where she mentioned that there was lots of flexibility regarding vacation days. The plaintiff operated under this assumption, and in early 2012 she expressed to Ms. Barnett her desire to take her vacation at the end of the year.

[72] The plaintiff said that when she returned to work for ITU, Ms. Barnett asked 2014 BCSC 2151 (CanLII) her if she was interested in working for the London Olympic Games. She was willing to give the plaintiff a two month leave in 2012, if she wished, which the plaintiff assumed would be unpaid leave. In any case, the plaintiff did not get a position in London. She also mentioned her job with the Arab Games at the end of 2011, for which she was compensated, in addition to her payment from ITU for her vacation time.

[73] In 2012, the plaintiff wished to take two months off at the end of the year. She was planning on travelling. She requested this time off in early 2012, likely in February. She did not think that her job at Sochi came into play at that time because she had met the representative in August in London. The two months off included the 25 days of vacation she was entitled to and she assumed that the ITU office would be closed over the Christmas break. She agreed that she wished to have two months’ vacation plus two weeks.

[74] The plaintiff agreed that she travelled in 2012, but said that after the trips, while she may not have immediately returned to the ITU office, she was working in between events and did not consider the breaks between events to be vacation time. In respect of her conversation with Ms. Barnett, the plaintiff said that she told her she would get two months paid vacation. The conversation took place in Ms. Barnett’s office. The plaintiff suggested Ms. Erin Greene replace her while she was away, and Ms. Barnett said she considered Ms. Greene to be a suitable replacement for the

Kim v. International Triathlon Union Page 22 plaintiff. The plaintiff came up with a plan to hire Ms. Greene for four months. She would train her for two months and then she could make an easy transition into her role while the plaintiff was away on vacation.

[75] The plaintiff said she told Ms. Barnett about her discussions with the representative of Sochi. She said that her plan was to work in Sochi, be paid by ITU, and have ITU pay for her replacement. However, at the time of her agreement with Ms. Barnett regarding her being paid for two months’ vacation, Sochi was not in the mix. 2014 BCSC 2151 (CanLII) [76] The plaintiff was referred to her email of September 11, 2012, to Ms. Leslie Buchanan, ITU’s Director of Anti-Doping, which reads as follows:

I was in a good mood when I came in but now I’m in a crap mood. we had a media meeting with loreen and when I told everyone i was going to take leave for nov & dec, loreen said we needed to finalize tasks in my absence with merryn and I said, yeah for sure, basically erin will take over, and she started saying well I don’t want to get in a position where we’re relying on one person … right but it’s okay to rely on me all year. anyhow, i don’t know what it bothers me so much and why she was so weirded out by just having erin and why she feels we need to have merryn as well…because honestly we need to shift our reliance away from contractors and more on staff…which is pretty much what what we’re trying to make erin, staff. and then, we found out in the meeting that it looks like qatar is coming on the WTS schedule and as a series main sponsor. which i’m kinda disappointed in …guess we have no values or morals, we just go where ever the money is. not only that, the date proposal is for march which makes the season too long, in my opinion. and if kitz stays on, then it’s 9 events, which I think is too many. anyway… glad you had a good weekend though that moving stuff doesn’t sound fun at all!!

[77] The plaintiff said that Ms. Greene had been hired in September, and Ms. Barnett knew that she was going to take over the plaintiff’s role while she was away. When asked if she knew in September that there was already a concern about her absence for two months, she replied that she was not concerned about this, but more concerned about whether Ms. Greene had the ability to do her job.

Kim v. International Triathlon Union Page 23

[78] The plaintiff agreed that she did not say “paid” leave in her email because Ms. Barnett wanted to keep their arrangement between them. The plaintiff insisted that her conversation with Ms. Barnett did happen, that she agreed to pay her for the months of November and December and she told the plaintiff that the arrangement was to be kept between her, the plaintiff, and Ms. Proseilo, who at the time was in charge of ITU’s payroll.

[79] The plaintiff was referred to her email exchange with Ms. Barnett regarding the other employee and in particular Ms. Barnett’s email to her of August 12, 2011,

wherein she said that she was not comfortable with the language the plaintiff was 2014 BCSC 2151 (CanLII) using in her emails. The plaintiff agreed that she could have used other words to describe her view of the other employee’s relationship with ITU.

[80] In relation to the email to the plaintiff from Ms. Barnett dated October 4, 2012, wherein she states that the plaintiff’s two months needed to be formalized, the plaintiff said that she never took the position that two months paid vacation was not generous, and in fact she was shocked that it was offered to her. She offered to take one month as unpaid vacation when Ms. Barnett suddenly offered her two months paid vacation, and the plaintiff was not going to object to this offer.

[81] In relation to the blog of October 5th, she said that she and Ms. Barnett had a very vocal disagreement over her having to take one month as unpaid vacation. She said Ms. Barnett accused her of not working enough and having a poor work ethic. The plaintiff insisted that she had not taken any vacation time earlier in the year. She also said that she worked an average of 90 hours a week, and that these hours were not always spent in the office, noting that she worked at home, in other locations outside the country and at airports.

[82] The plaintiff said that Ms. Barnett told her she had poor work habits and that her having to work long hours was due to bad organization. The plaintiff testified that she was working long hours because she had work to do.

Kim v. International Triathlon Union Page 24

[83] The plaintiff said that friends and family visited her blog frequently. She noted the fact that her entire blog since the beginning had received 2243 views. There is no way to know if more than just friends and family visited her blog site.

[84] The plaintiff said that her conversation with Ms. Barnett conjured up feelings from her past, and that she was venting about an incident that conjured up some pain from her past. She knew her blog was going out into the public domain, but she also knew her audience was family and friends. She knew some of her co-workers read her blog. When asked if she thought what she had written was appropriate, she

said that at the time she did not think it was appropriate or inappropriate because 2014 BCSC 2151 (CanLII) she was frustrated and venting. When asked whether being struck by her mother was equivalent to her boss denying her one month of paid vacation, she said “no”.

[85] Defence counsel suggested to the plaintiff that when Ms. Barnett learned of the blog, she called the plaintiff into her office (Ms. Buchanan was present) and told her that she should not travel to Auckland. The plaintiff disagreed and said that Ms. Barnett gave her the option not to go. She agreed that Ms. Barnett told her that she was concerned about the plaintiff’s level of stress, but said that Ms. Barnett did not tell her she should not go to Auckland. The plaintiff told her that she felt she should go. When asked if she sensed that something was wrong, she said she knew there were tensions but that it was not much different from their previous disagreements.

[86] The plaintiff acknowledged Ms. Barnett’s expression of concern to her about the fact that she was not comfortable with the language the plaintiff had used in connection with the other employee, but said that she was not reprimanded about this. She was also referred to Ms. Barnett’s concerns about some of her tweets and that Ms. Barnett wanted the ITU handle removed from the plaintiff’s Twitter account because she wanted it to be clear that the views expressed were not those of the ITU. The plaintiff agreed that this happened, but said that she was never reprimanded about her communication style.

Kim v. International Triathlon Union Page 25

[87] When the plaintiff was asked if there was a time when she realized the content of her blog was inappropriate, she said she realized it was a vent and emotional, but she said no one said to her it was inappropriate and she did not think it was damaging to Ms. Barnett’s reputation.

[88] As for her tweets in August, she said that these were on her personal Twitter account and Ms. Barnett had told her she was free to express her personal views. Regarding her remark about team tactics failing, she said she was being facetious and trying to be funny, but agreed that she knew the British could be upset and she

was not surprised that Ms. Peters took exception, but no one told her that her 2014 BCSC 2151 (CanLII) remarks were inappropriate.

[89] Regarding the plaintiff’s tweets in the fall of 2012, she said that her comment about leaving her alone until 2013 was her sense of humour. As for the comment about the after-party, she said that she was just trying to point out that it was a fun party and she did not think it cast the directors in a bad light. As for the use of the word “propaganda”, she said she thought it was a funny word and was part of her facetious sense of humour. She said that the tweet stating that if she did not care she would not get mad did not mean to imply she had flew off the deep end before, it was her being overly dramatic and theatric. The tweet was written to explain why she was emotional at times because she is really passionate about her job.

[90] The plaintiff went on vacation for three weeks after Auckland. Her plan was to return, work for two weeks and then take time off for the remainder of December. She guessed that ITU could have terminated her employment while she was on vacation and not waited until she returned.

[91] The plaintiff said she had no idea why Mr. Beeche wrote his letter to Ms. Barnett, and that his letter was never discussed with her.

[92] As for the tweets she had written in early January 2013 after her termination, she said it was just her sense of humour. She said that it was her over the top sense of humour, that it was not as funny as she thought it was, and that it was over the

Kim v. International Triathlon Union Page 26 edge. When counsel suggested to the plaintiff that even after she was told that her communication style was an issue with ITU she did not change her style, she said that it was still her facetious sense of humour. The plaintiff said that while she was told that her communication style was not in line with ITU, she was never formally reprimanded and never given any specifics.

B. Ms. Barnett

[93] Ms. Barnett testified that during the plaintiff’s employment there were 10 staff members in ITU’s office located in North Vancouver. She said that the office atmosphere was not one that reflected a culture of gossip. She said that staff tried to 2014 BCSC 2151 (CanLII) have lunch together and she thought it was a great place to work, she also said that she tried to promote a healthy culture, including encouraging exercise and leading a balanced life.

[94] Ms. Barnett said that Mr. Mahony involved her in the hiring of the plaintiff. She had agreed that the staff should be increased in the communications area. In the plaintiff’s first period of employment, she filled a new position of Communication Manager, reporting to Mr. Mahony as the Director of Media, Communications and Television. During the plaintiff’s first period of employment she had no direct reporting to Ms. Barnett.

[95] Ms. Barnett said that ITU needed a person who could write and prepare content for the website, as well as prepare news stories on events, including World Cup and World Championships. The plaintiff was to attend major events to manage the media on site, and to assist photographers to post photos.

[96] Ms. Barnett said that ITU had a template for an employment agreement, but it was never formalized and never evolved to a formal contract of employment. When the plaintiff started in 2007, Ms. Barnett was really quite satisfied with her production. She said there was always a rudeness that was challenging to deal with, and that very soon after the plaintiff started she took an aversion to Mr. McDonald, who was still active while the plaintiff was employed. Ms. Barnett explained that Mr. McDonald is a strong character and can himself be challenging at times, but the

Kim v. International Triathlon Union Page 27 plaintiff did not make allowances for his differences, nor put up with his stories and jokes.

[97] In 2008, the plaintiff was open about the fact that she was looking for other employment. She told Ms. Barnett about her interest in EA Sports. Timing wise, it was a good time at ITU for the plaintiff to move on, as the Beijing Olympics were over. Once she joined EA Sports, the plaintiff kept in touch with the employees at ITU.

[98] Ms. Barnett knew that the plaintiff left EA Sports in August 2009, and that she 2014 BCSC 2151 (CanLII) was pursuing an opportunity with VANOC. She mentioned the plaintiff’s discussion with Ms. Proseilo about the plaintiff going to the Congress being held in Australia in October 2009. Initially Ms. Barnett thought it would be fine, but Mr. Mahony was reluctant to involve the plaintiff. In any case, Ms. Barnett saw the plaintiff at the Youth Olympic Games in Singapore in the late spring of 2010, and then in Budapest in early September. After this, she had a discussion with the plaintiff when they were both at the Asian Games, where the plaintiff was working on contract. She spoke to the plaintiff about doing ITU’s annual book and some events.

[99] The plaintiff did some contract work for ITU from September to December 2010. It was getting close to the London Summer Olympic Games, and in December of 2010 Ms. Barnett decided to make the plaintiff an offer of employment for the plaintiff to start at ITU in January 2011. There was no formal written employment contract. At the time, the plaintiff declined the benefits package.

[100] Ms. Barnett said that the plaintiff’s salary in January 2011 was $70,000. Her title was Senior Communications Manager. The plaintiff was responsible for all ITU messaging, all pre and post-event stories and content, and the website content.

[101] Regarding Ms. Barnett’s discussion with the plaintiff about taking two months of vacation in 2012, she said that the plaintiff approached her in 2011. The plaintiff found working with a particular employee extremely challenging. She did not have the same approach to editing for him and she would rewrite his material causing her

Kim v. International Triathlon Union Page 28 a lot of stress that fell on Ms. Barnett. When the plaintiff complained to Ms. Barnett about this adding to her workload and spoke about adding to her vacation time and taking her vacation at year end, Ms. Barnett agreed that the plaintiff could take all of her vacation time at year end.

[102] Ms. Barnett said that the office staff had heard from the plaintiff about how hard she was working, but queried why she did not take time off when she could, and why she took on a job with the Arab Games. It created a level of frustration.

[103] Ms. Barnett said she heard regularly from the plaintiff that she was putting in 2014 BCSC 2151 (CanLII) 90 hours a week, but said that she would arrive in the office at about 10 in the morning after it seemed that she had just gotten out of bed, and as time went on she got grumpier and grumpier.

[104] Ms. Barnett believed that it was around the time that the plaintiff was considering a job at the London Olympic Games that she first spoke to her about taking vacation time in 2012. Ms. Barnett challenges the plaintiff’s position that Ms. Barnett told her she could take two months of paid vacation. She testified that she never said this to the plaintiff and that from the start she said that the plaintiff would have to set up her leave arrangement with Ms. Proseilo, because unpaid leave had to go through her. She said that if she had agreed to give the plaintiff two months of paid vacation the rest of the staff would have revolted. She testified that she told the plaintiff to keep between her, the plaintiff, and Ms. Proseilo, the fact of the plaintiff taking leave, not the unpaid aspect. She also believed that by this time the plaintiff had had contact with Sochi and that Sochi was a paid position, as was the Arab Games.

[105] Ms. Barnett said that it was the email from the plaintiff dated July 18, 2011, that she first heard that the plaintiff was not offered a position at the London Olympic Games. She clearly remembers that it was in the first quarter of 2012 that she had a discussion with the plaintiff about her taking vacation in 2012. She believes that Sochi was part of the discussion.

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[106] Ms. Barnett said that it was at the staff meeting in early September that the plaintiff just blurted out that she was going to take November and December off. Ms. Barnett said that she and the plaintiff still needed to finalize the arrangement, meaning that the plaintiff had to make her arrangement with Ms. Proseilo.

[107] Ms. Barnett said that during the plaintiff’s employment in 2011 and 2012, she had many discussions with her about her communication style. She said that there was a level of satisfaction about the quantity of work she produced, however it seemed like her negative mannerisms were becoming more pronounced. At first she

assumed it was because of her frustration with another employee, and some other 2014 BCSC 2151 (CanLII) matters. She said there were emails that would be all full caps, and situations would escalate that could have been resolved with a phone call. She said she tried to manage with face to face discussions, and she told the plaintiff that she felt she had so much potential, particularly if she took advantage of dealing with and communicating with people in the Olympic movement. Ms. Barnett said to the plaintiff many times that her style of communication was not conducive to not-for- profit sport in the Olympic movement.

[108] Ms. Barnett spoke about taking away the plaintiff’s ITU Twitter handle. In her tweets, the plaintiff seemed to have an interest in the Brownlee brothers and an athlete by the name of Gomez, but the way she messaged her tweets was a put down for the Brownlees and support for Gomez. Ms. Barnett said that the style of the tweets was not appropriate. Ms. Barnett said that while ITU’s name was removed from the plaintiff’s Twitter account handle, it was still in the message.

[109] Ms. Barnett testified about the incident where a story written by the plaintiff had to be amended and she told the plaintiff she had changed the story. In front of other staff the plaintiff responded by yelling and swearing, telling her no one had the right to change anything on the website. Ms. Barnett told the plaintiff to come into her office that moment. She told the plaintiff her behaviour was completely inappropriate. This took place in the spring/summer of 2012.

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[110] Ms. Barnett testified about her conversation with the plaintiff on October 4, 2012. It was time to confirm the plaintiff’s leave. She said that from the beginning she was clear that she was happy for the plaintiff to take two months off. She felt that the plaintiff had had some vacation and down time. By this time most of the staff members were tired of hearing how hard the plaintiff claimed she had been working, even though she had stayed abroad after the completion of events. In addition, the plaintiff’s attitude was becoming more challenging. She told the plaintiff she would have to talk with Ms. Proseilo about her second month of leave without pay.

[111] Ms. Barnett said that one’s well-being cannot be sustained while working over 2014 BCSC 2151 (CanLII) 90 hours a week and she communicated this to the plaintiff. She recalled general discussions with the plaintiff on a number of occasions.

[112] Ms. Barnett said that the plaintiff called her a liar and claimed she had told her that the plaintiff could have two months of paid vacation. Ms. Barnett said she generously agreed that the plaintiff could have two months away, meaning the plaintiff could use her vacation time and have a second month unpaid. Ms. Barnett told the plaintiff they were done with the matter and for her to get a letter to Ms. Proseilo.

[113] Ms. Barnett said that first time she saw the blog post was on the morning of October 5, 2012. She said that there were two or three staff members at Ms. Proseilo’s desk and they showed her the plaintiff’s blog link, after which she read the blog. She was shaken like she had not been shaken before. She went back out and spoke to the staff but she did not say a lot. She was extremely embarrassed and could not think of what she had done to deserve this. The blog reflected a serious dissatisfaction by the plaintiff with ITU, and Ms. Barnett in particular. It was agreed that Ms. Barnett and Ms. Buchanan would meet with the plaintiff that same day. When the plaintiff arrived at the office, they asked to speak with her. Ms. Barnett told her that her behavior showed dissatisfaction with ITU. Ms. Barnett felt that all was in place for Auckland and she was confident that the workload could be handled, so she told the plaintiff to stay home, take some time off, and take her

Kim v. International Triathlon Union Page 31 vacation as planned. While there was no specific mention of the plaintiff’s blog, Ms. Barnett felt that the plaintiff understood. The plaintiff said that she had put so much work into Auckland and she deserved to attend. Ms. Barnett said she has asked herself many times why she did not insist that the plaintiff not attend. She said she was nervous and felt like she was walking on egg shells. She said that she probably should have insisted that the plaintiff not attend, but she did not.

[114] Ms. Barnett said that the blog post was raised with her in Auckland by some of the directors and officers in attendance. They were shocked that the blog had

been written by the ITU’s Senior Communications Manager. 2014 BCSC 2151 (CanLII)

[115] Ms. Barnett said that when she met with the plaintiff on October 5th she was on the eve of departing for Auckland to attend the events and Congress. She said that in Auckland the whole climate in the media team with the contractors that had come on board was completely dysfunctional. The plaintiff complained about the media room that had been set up, and Ms. Barnett said that the plaintiff was verging on abusive, based on what she had observed and what others had told her.

[116] Ms. Barnett testified that her discussion with Mr. Beeche started about six months before Auckland. He was in the habit of submitting updates and he called her to express some concerns about the plaintiff being negative regarding media events in Auckland. She spoke to the plaintiff about it and she dismissed it as they not knowing what they were doing.

[117] Ms. Barnett spoke with Mr. Beeche while she was in Auckland. He expressed some concern regarding the fact that his media manager was frustrated, giving as an example that the final press release took three hours to come out. Ms. Barnett said that the climate in the media area was really toxic, and after Mr. Beeche spoke to her several times about it she told him to put it in writing. Ms. Barnett said that she did not ask him to write this specific letter.

[118] Ms. Barnett was asked about her use of the term “toxic”. She spoke about the feeling and experience that the media contractors were having when they were

Kim v. International Triathlon Union Page 32 around the media room. People were not talking to one another, and the environment was not healthy. She said you would not expect this from ITU’s Senior Communications Manager. She did not bring this to the attention of the plaintiff.

[119] Ms. Barnett also spoke about the letter from Ms. Peters. She said this was not the first time she had heard about the Brownlees matter as she had heard about it from people with the British Triathlon Association. She saw Ms. Peters in Auckland who spoke to her about the matter and she asked her to put it in writing. Ms. Barnett did not discuss this matter with the plaintiff in a way that would ask her to correct her

style. 2014 BCSC 2151 (CanLII)

[120] Regarding her email to the plaintiff dated October 5th, when she told the plaintiff that she believed in her, she said this was written before she read the blog, and that her email dated October 4th to the plaintiff wherein she said that December should be declared an unpaid leave, was written before she met with the plaintiff on that date about her vacation time.

[121] Ms. Barnett testified that the plaintiff’s tweet of October 22nd, containing use of the word “propaganda”, was sent during Congress. One of her senior staff in media alerted her that this tweet was sent by the plaintiff. She said it was “troubling”. It came out just after Ms. Casado had made her presentation. Staff also brought to Ms. Barnett’s attention the plaintiff’s tweet about the after-party.

[122] Ms. Barnett was asked about her email to the plaintiff dated August 12, 2011, wherein she mentioned that she was not comfortable with the language the plaintiff was using in her emails. She said that a style was evolving during her second term with ITU and that there were numerous times that she told the plaintiff about the tone of her emails.

[123] Regarding the incident in Stockholm that involved the police. She had been told that the plaintiff had been rude and yelling at police and had thrown a bowl of candies at a wall. She spoke to a person who was in the room at the time when the incident took place and he told her what he had witnessed. She contacted the

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President of the Swedish Federation. Apparently the room had been designated a media room during the competition. They were tight on space, so they opened up the room to let police and security personnel use it. The plaintiff blew up, becoming angry and could not accept the conditions.

[124] After her investigation and discussions with others, Ms. Barnett decided to try and mitigate any further incident, get through the events and Congress, and then deal with the matter.

[125] Although Ms. Barnett was the head of staff, she needed to consult with 2014 BCSC 2151 (CanLII) Ms. Casado before hiring or firing personnel. She did consult with her before terminating the plaintiff. When she met with the plaintiff she told her that it was obvious that their communication styles were too far apart, and that ITU was terminating her employment and was providing her with a letter of termination.

[126] Ms. Barnett said ITU did not allege cause because, going back to the plaintiff’s involvement in the Olympic movement and her short term contract history, she felt, clinging to a thread of confidence in her ability as a journalist, that she did not wish to cause long term impact on the plaintiff’s ability to get employment. She felt that the best way was to terminate the plaintiff and allow her to carry on. She offered to give the plaintiff a letter of reference. She said that the Olympic family is small, and she did not wish to cause her harm in this area.

[127] In cross-examination, Ms. Barnett explained that when the plaintiff was re- hired by ITU she returned with more experience and received a salary of $75,000 by year end, which increased to $77,000 by the time of her termination, which is the amount of salary received by all ITU senior managers.

[128] Ms. Barnett said she told the plaintiff many times that she felt she had good potential and that she had a satisfactory work production. She said that at the end of 2011 there was a growing feeling that the plaintiff was becoming increasingly negative and aggressive in her communication with staff and the National

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Federation. Ms. Barnett said that she did not have a good feeling about the plaintiff as an employee.

[129] Ms. Barnett testified that ITU relied upon the tweets in the fall of 2012, the blog from October 5th, the tweets in August 2012, and the letter from Mr. Beeche as just cause for the plaintiff’s termination. In terms of whether the plaintiff was disciplined, Ms. Barnett replied that ITU was not a grade five classroom, and that the staff functioned in a team way, set workloads and helped each other out. She did everything within her ability to encourage staff and there was every opportunity

available for staff to develop. She did not think that much about discipline as the staff 2014 BCSC 2151 (CanLII) were all professionals.

[130] Ms. Barnett said that the plaintiff looked to her as a mentor, not as a mother figure. She did not view the culture at ITU as a gossip culture. Plaintiff’s counsel referred her to an email dated August 12, 2011, from Ms. Proseilo to the plaintiff, and asked Ms. Barnett if the content reflected a gossip culture. Her response was that she knew staff felt she was too easy when it came to money matters, but she did not think the email showed a gossip culture. In response to a question from counsel about whether an email from Ms. Burrell to the plaintiff, dated September 8, 2012, forwarding an email exchange between Ms. Casado to Ms. Burrell and an email exchange between the plaintiff, Ms. Burrell and Ms. Buchanan reflected a culture of gossip given the criticism contained in the emails towards Ms. Casado, Ms. Barnett replied that it did not, rather it was indicative of a culture going through evolution. She explained that when Ms. Casado was elected as President, she expected more from the staff than the staff were used to. She said she was aware of the staff’s concerns, however she worked with them to have an understanding of Ms. Casado’s style. She said that both her and Ms. Casado were aware of the challenges faced by the staff. She also said that this was an internal email exchange and did not go further and that Ms. Buchanan was still employed by the ITU.

[131] Ms. Barnett conceded that she communicated with the plaintiff in an informal manner and that there would be humour, and that while the word facetious did not

Kim v. International Triathlon Union Page 35 come into her head when she thought about the plaintiff’s communications, she did agree that the plaintiff could be sarcastic. When asked whether her practice was to encourage ITU employees to be outspoken and have opinions, she replied “absolutely”. Counsel referred Ms. Barnett to an email from the plaintiff to her dated December 17, 2010, wherein she wrote, “that was a test…and loreen YOU passed with flying colours!! Well done!!”. When counsel asked her about her engaging with the plaintiff in a joking dialogue she noted that this was at a time before the plaintiff was re-hired.

[132] In reference to the plaintiff’s tweets in the fall of 2012, counsel suggested to 2014 BCSC 2151 (CanLII) Ms. Barnett that one interpretation of the tweets is that the plaintiff was being sarcastic. Ms. Barnett said that the tweets came from the ITU Senior Communications Manager and noted that the use of the word “propaganda” in the October 22nd tweet went worldwide. She said that she was troubled by the tweets. She said that she did not talk with the plaintiff about the tweets because the plaintiff went on vacation, nor did she talk to her about the tweets when she returned from vacation. She said she certainly did warn the plaintiff not to be sarcastic on many occasions. She told her she would progress in the Olympic movement, but what was holding her back was her style which came to a head at the Congress.

[133] Ms. Barnett said that after she asked the plaintiff to remove the ITU handle from her Twitter account, that ITU never left the messaging and that it was still as if it was an ITU Twitter account. She said the plaintiff should have had enough skill to know what was appropriate when it came to ITU and the athletes. She said that the October 22nd tweet was sent during the workday and Mr. Mahony brought it to her attention. Ms. Barnett said that she discussed with the plaintiff the type of messaging that one would expect and noted that the plaintiff was a professional journalist. She said that ITU had a communication plan drawn by the plaintiff. The plaintiff was to update the plan which contained statements about social media. She said that she and the plaintiff worked on drafts together, but it did not come up when she met with the plaintiff about removing the ITU handle from her Twitter account. She said that although she followed the plaintiff’s Twitter account she did not regularly go to the

Kim v. International Triathlon Union Page 36 site. She repeated that she had many discussions with the plaintiff about her style of communication.

[134] Ms. Barnett agreed that she encouraged ITU employees to be on social media. She said that it is important to ITU. The fan base at the Olympics judge how important the ITU is, in addition, Twitter, Facebook, and YouTube maximize ITU’s presence and help it acquire a fan base. She said that part of the plaintiff’s job was to be on social media. Ms. Barnett told counsel she did not have regular discussions with the plaintiff about her communication style on Twitter, rather it was general

discussions, noting when she asked the plaintiff to take down her ITU Twitter 2014 BCSC 2151 (CanLII) account, and that all of the other discussions were around her style of communication, which she said would have included Twitter. She disagreed with counsel that the only discussion she had with the plaintiff was about the removal of the ITU handle on the plaintiff’s Twitter account. Regarding the October 5th blog, Ms. Barnett agreed that her name is not mentioned, but said that it is clear it was about her and that it was about her as the head of ITU. She was deeply offended by the blog. She said she sent the blog to her sister. A number of people in Auckland spoke to her about it. She said she did not wish to draw further attention to it, or risk more of this kind of blogging from the plaintiff.

[135] She said that in the case of the letters from Ms. Peters and Mr. Beeche they were with respect to an ongoing concern about the plaintiff’s communication style, but the blog was different. She said that everyone at ITU was extremely embarrassed that this type of message was coming from the Senior Communication Manager. She said that she was at a complete loss, that she had exhausted all of her quiver of skills with the plaintiff, and that nothing she said changed her and she had nothing left. Counsel suggested to her that what she was concerned about was the plaintiff’s condition and not her own, and she replied that her concern was that ITU’s Senior Communication Manager was sending this kind of messaging through the internet.

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[136] Ms. Barnett testified that the tweets and the blog clearly demonstrated that the plaintiff’s communication style was not in line with the ITU, and in her face-to- face meetings with the plaintiff she made a sincere attempt to outline to her that her communication style was inappropriate. When asked if there was a particular incident which stood out and upon which ITU relied the most for cause, she said that it was more a situation of compounding instances over a number of months which culminated in the tweets the plaintiff sent while she was in Auckland, just moments before the election, and her October 5th blog which was an extreme attack on her personally. 2014 BCSC 2151 (CanLII) [137] Ms. Barnett said the problem with the plaintiff’s style of communication started when the plaintiff was re-hired by ITU and she could not have an appropriate relationship with another employee. Ms. Barnett said she made attempts over a number of months to have the plaintiff work with other staff.

[138] Ms. Barnett said that before the August 2012 tweets, she had asked the plaintiff to remove ITU from her twitter handle. She said that even though she removed ITU from the twitter handle she continued the same communication style on her personal account. She said she spoke with the plaintiff about this, but did not ask her to remove the tweets. She said the tweets came to her attention from the British Triathlon Association. At the time she had a lot on her plate and she did not expect to have to deal with this kind of conduct by the plaintiff. She expected that the plaintiff would know what was and was not appropriate.

[139] Ms. Barnett repeated her testimony that she told the plaintiff that she had so much potential but that she had a style that did not fit with the ITU. She said that she spoke to her many times, to the point of exhaustion, but she never put it in writing and never asked the plaintiff to remove the tweets. She said she was not aware of the August tweets until after the 2012 Olympics. She said she was exhausted with any attempt to change the plaintiff and felt she had done her job. She did not raise the August 2012 tweets with the plaintiff.

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[140] Regarding the October 5th blog, she said that when she met with the plaintiff she talked around it. They were getting ready to leave for Auckland and her relationship with the plaintiff had hit rock bottom. She met with the plaintiff to convince her not to go to Auckland, and although the blog was not specifically mentioned she believed that the plaintiff knew what was being talked about. She did not ask the plaintiff to take down the blog post. She said she thought that a person in the plaintiff’s position with ITU would have the intelligence to take it down. She told the plaintiff to take some time off, which was connected to the blog post even though it was not specifically mentioned. Ms. Barnett said that the atmosphere in Auckland was toxic because of the plaintiff and she made up her mind that the plaintiff could 2014 BCSC 2151 (CanLII) no longer work for the ITU.

[141] When the plaintiff returned to the office on November 20, 2012, she was terminated and given the letter of dismissal. It was Ms. Barnett’s hope that with the compensation offer the plaintiff would understand that there was a need to terminate her and she would accept the package offered. She said she did not want to block opportunities that the plaintiff might have in the Olympic movement, and noted that the plaintiff was more successful with short term contracts such as the one the plaintiff had with VANOC. She said it was obvious to her that the plaintiff’s style was going to continue.

[142] Ms. Barnett testified that dismissing the plaintiff for cause would hamper her future and ITU did not want to do that. The plaintiff commenced her lawsuit in 2013. Ms. Barnett said she was surprised and it took some time for ITU to discuss and prepare its argument. She agreed that when the ITU defence was filed there was no allegation of cause, and that at her examination for discovery she said that there was no cause. She said in explanation for the fact that cause was not alleged by ITU until 2014, that looking back over the evidence, it was completely in ITU’s right to change its position on cause and it had more than enough to allege cause. She said she used to think the plaintiff had a lot of potential, and ITU did not wish to harm her opportunities in the Olympic movement.

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[143] As for vacation time, Ms. Barnett said that all staff received five weeks per year and that ITU was not strict with vacation time, but that when the plaintiff claimed that she had not taken any vacation in 2012 she did not accept this, even though no records were kept. She agreed that a month paid and one month unpaid was less than five weeks, but said that the plaintiff had taken a vacation after Auckland.

5. Submissions on Whether the Plaintiff was Wrongfully Dismissed

A. The Plaintiff’s Position

[144] The plaintiff submits that evaluating each of the social media incidents as individual incidents should not result in a finding of cause, based on the following 2014 BCSC 2151 (CanLII) considerations:

i. the plaintiff had innocent motives for the social media posts. The blog post was a vent in a moment of frustration and extreme stress after being denied her expected vacation time, and brought back to her feelings of disappointment from being abused by her mother. The Facebook and Twitter posts were made either in jest about ITU partying, vacation time, and election campaigning, or to show her passion;

ii. there was no evidence of any actual harm from the blog post and other social media posts. ITU provided no evidence of any actual harm aside from Ms. Barnett saying that the blog post offended her. It can also be inferred from ITU’s actions that there was no actual harm suffered as it was aware of the social media posts shortly after they were made, but took no steps to minimize any damage, as there was none;

iii. the blog post was a single incident and there are no other incidents or posts put forward that refer to the plaintiff’s boss;

iv. ITU never gave the plaintiff the opportunity to explain the social media posts, as they were never discussed with her; and

v. ITU had no rules regarding social media, therefore there were no clear rules against the plaintiff making the social media posts, and no rules setting out what would be considered unprofessional conduct.

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[145] The plaintiff says that the above points suggest that the social media posts as individual incidents do not amount to insubordinate conduct, and even if they do, they do not rise to the level necessary for the proportionate response to be summary dismissal.

[146] The plaintiff also says that even if the social media posts amount to unprofessional conduct, and there is no ITU policy that defines what unprofessional conduct is, they did not rise to the level necessary for the proportionate response to be summary dismissal. In specific reference to the blog post, the plaintiff argues that

it cannot be considered misconduct which justifies termination because the parties 2014 BCSC 2151 (CanLII) met after the blog post, with the intent after that meeting being for the plaintiff to continue with her employment. Furthermore, Ms. Barnett testified that although she was embarrassed by the blog post, she interpreted it as the plaintiff being dissatisfied with ITU. She did not state that the employment relationship could not continue after the blog post.

[147] The plaintiff argues that where an employer alleges cumulative cause for dismissal, and where there are repeated incidents alleged as cause, the employer must show that:

i. it has established a reasonable and objective standard of work performance;

ii. it warned the employee of the consequences of failure to meet the standard;

iii. it gave the employee time and assistance to remedy her or his work performance; and

iv. the employee failed to remedy her or his work performance after the final warning.

Only if the above is proven by the employer, can the employer successfully claim cumulative cause for dismissal: Ogden v. Canadian Imperial Bank of Commerce, 2014 BCSC 285.

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[148] The plaintiff says that there is insufficient evidence here for a finding of cumulative cause because:

i. ITU has not established a reasonable and objective standard of work performance. ITU had no social media policy or any policies that governed the use of social media at all, therefore ITU cannot rely on the proposition that the plaintiff breached or failed to perform at such a standard. Instead, ITU encouraged employees to utilize social media and Ms. Barnett herself has a personal Twitter account from which she tweets about a variety of subjects; 2014 BCSC 2151 (CanLII) ii. ITU never warned the plaintiff about the consequences as ITU has never disciplined, or even discussed the social media postings they are relying on for cause with the plaintiff; and

iii. ITU took no steps to remedy what they allege now as problems with the plaintiff’s communication style, even though it states that it took such steps to attempt to remedy problems with other employees prior to their dismissal.

[149] With the above in mind, the plaintiff contends that there should be no finding of cumulative cause.

[150] The plaintiff also submits that where an employer has full knowledge of an employee’s conduct and does not take any steps to discipline the employee, it cannot months later rely on that same conduct as cause for dismissal as it has essentially condoned such conduct. The plaintiff further submits that the onus is on the employee to prove condonation, Fitzgibbons v. Westpres Publications Ltd. (1983), 50 B.C.L.R. 219 (S.C.), and this can be done by making inferences from the employer’s conduct: Nardulli v. C-W Agencies Inc., 2012 BCSC 1686 at paras. 306- 307, rev’d on other grounds, 2014 BCCA 31.

[151] The plaintiff says that if her social media postings are found to be misconduct, it can be inferred that ITU condoned her behavior, specifically her use of social media, based on the following:

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i. ITU states that they had issues with the plaintiff’s communication style from January 2011, but took no steps to address it. The plaintiff testified that aside from Ms. Barnett instructing her to tweet her opinions from a personal Twitter account, her social media usage was never discussed. Ms. Barnett testified that there were a number of talks with the plaintiff about her communication style, but confirms that there were no warnings to the plaintiff regarding this style. The plaintiff submits that her evidence that no communication style meetings took place should be preferred, as ITU has not produced any documentary evidence, contemporaneous or

otherwise, of any kind that such meetings occurred or any specific details 2014 BCSC 2151 (CanLII) about these meetings.

ii. Instead, even though ITU claims that issues with the plaintiff’s communication style existed since January 2011, it took steps that indicated that it approved of her performance. These steps include providing her with raises, bonuses, extra time off, and complete control of the front page of the ITU website. ITU took no steps to manage her communication style, even though they had taken such steps with another employee. Furthermore, ITU was already well aware of the plaintiff’s communication style as they have hired her three times, twice as an employee and once for contract work.

iii. Ms. Barnett has drawn a distinction between the use of her own personal Twitter account and posts made on behalf of ITU. All of the plaintiff’s social media postings that ITU is relying on as cause are from her personal blog, Facebook page, and Twitter account.

iv. When the social media posts that are relied on as cause occurred, Ms. Barnett was aware of them almost immediately after they were posted, but chose to take no steps to discipline the plaintiff or discuss them with her, or to have them removed;

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v. The plaintiff’s employment continued for weeks after the social media posts. When she was dismissed, ITU neither relied on the social media posts or even mentioned them to her.

vi. ITU never made any allegation of just cause for dismissal until February 17, 2014, and chose to do so after Ms. Barnett decided that she believed the plaintiff had not changed.

[152] The plaintiff argues that based on the above, in particular that ITU took no steps to address the social media posts, and that ITU condoned the plaintiff’s

conduct, it cannot claim that her conduct, if it is indeed insubordinate or 2014 BCSC 2151 (CanLII) unprofessional, is cause for summary dismissal.

[153] The plaintiff says that at worst, the blog post can be classified as a personality clash between her and Ms. Barnett made when she was in a time of extreme disappointment and stress after being denied her expected vacation. The plaintiff and Ms. Barnett had several arguments before, in particular the argument over the website front page and another employee’s performance, and these arguments had always been worked out. Even if the blog post was insubordinate or unprofessional conduct, it is conduct that arose from extenuating circumstances and extreme stress, and did not warrant summary dismissal as the employment relationship was not irrevocably destroyed.

[154] The plaintiff also says that at the time of her dismissal, ITU paid her statutory termination pay and made a further offer of severance pay, noting that Ms. Barnett states it was because ITU wanted to recognize the plaintiff’s greater service to the Olympic movement. This, says the plaintiff, suggests that ITU evaluated the good of her employment against the bad and decided that the good outweighed the bad, and that summary dismissal for cause was not warranted. Communication style not aligning with ITU is not in itself conduct that amounts to cause for dismissal.

[155] On the issue of damages, the plaintiff submits that the following cases are comparable to establish a range of reasonable notice:

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i. in Bavaro v. North American Tea, Coffee & Herbs Trading Co., 2001 BCCA 149, the dismissed employee was age 35, had 14 months of service, occupied the position of purchasing manager, and was awarded six months’ notice;

ii. in Heyes v. First City Trust Co., [1982] B.C.W.L.D. 033 (S.C.), the dismissed employee was age 33, occupied the position of residential mortgage manager, had 20 months of service, and was awarded eight months’ notice;

iii. in Quinlan v. Bridgeport Self-Serve Carpet Clinic Ltd. (1993), 2 C.C.E.L. 2014 BCSC 2151 (CanLII) (2d) 60 (B.C.S.C.), the dismissed employee was age 39, occupied the position of store manager, had three years’ service, and was awarded eight months’ notice;

iv. in Beth v. Advanced Micro Devices Inc., 2008 ONCA 686, the dismissed employee was age 30, occupied the position of “Manager”, had 2.5 years of service, and was awarded nine months of reasonable notice;

v. in Mackie v. West Coast Engineering Group Ltd., 2009 BCSC 1775, the dismissed employee was age 48, occupied the position of production manager, had 21 months of service, and was awarded nine months’ reasonable notice; and

vi. in Rieta v. North American Air Travel Insurance Agents Ltd. (1996), 19 C.C.E.L. (2d) 117 (B.C.S.C.), aff’d (1998), 52 B.C.L.R. (3d) 114 (C.A.), the dismissed employee was the assistant claims manager, had three years of service, and was awarded six months’ notice.

Based on the above authorities, the plaintiff submits that the appropriate range of notice for her is between six and eight months; however, given the degree of specialization required for her position, and unique difficulties in finding work in the sports and entertainment industry, she submits that the reasonable notice period should be at the high end of the range of nine months. She says that the cases are

Kim v. International Triathlon Union Page 45 applicable for both a 2-year and 4-year length of service should it be found that she is actually a 2-year employee.

[156] The plaintiff also claims lost MSP benefits in the amount of $66.50 per month.

B. ITU’s Position

[157] ITU submits that the October 5th blog, which was written after the plaintiff was denied two months of paid vacation by Ms. Barnett (and instead offered one month of paid vacation and one month of unpaid vacation during which the plaintiff intended to work for a third party) was, in and of itself, cause for her dismissal. Especially, 2014 BCSC 2151 (CanLII) when the blog is considered in the context of the plaintiff’s prior unprofessionalism, including:

i. her comments regarding another employee;

ii. her disrespect for authority, specifically Ms. Casado;

iii. the inflammatory email messages regarding the Brownlee brothers; and

iv. the fact that Ms. Barnett had received complaints about the plaintiff from the heads of two national triathlon organizations.

[158] ITU further submits that if the blog was insufficient to establish cause, the tweets during the Congress in Auckland, which not only shed Executive Board members in a negative light, but also the entire international triathlon federation for its purported "propaganda", tipped the balance in favour of cumulative cause for dismissal.

[159] ITU says that if there is any question as to whether or not a lesser penalty would have been appropriate in the circumstances, it is telling that after the plaintiff’s termination from employment, she continued her unprofessional, disrespectful and insulting comments over social media, specifically the tweets regarding a former ITU President, and a former boss. Throughout the trial, the plaintiff failed to acknowledge the gravity of her conduct by simply saying that she is an emotional person.

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[160] ITU says it did not initially allege cause for the plaintiff’s dismissal, which according to Ms. Barnett, was due to two issues:

i. Ms. Barnett was very concerned about what the plaintiff might do in terms of further comments regarding ITU on social media on the eve of and during the upcoming Congress and election; and

ii. Ms. Barnett did not want to hinder the plaintiff’s ability to find alternative employment. Upon the filing of a public lawsuit, this was no longer a concern and it was within ITU's rights to allege cause.

[161] ITU submits that the test for cause was set out by the Supreme Court of 2014 BCSC 2151 (CanLII) Canada in McKinley v. BC Tel, 2001 SCC 38, and summarized by Kirby v. Amalgamated Income Limited Partnership, 2009 BCSC 1044, at paras. 156 to 159:

[156] The contextual approach is applied to determine whether misconduct constitutes just cause, as set out in… [McKinley], as follows: [48]... whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. More specifically, the test is whether the employee's dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee's obligations to his or her employer. [49] In accordance with this test, a trial judge must instruct the jury to determine: (1) whether the evidence established the employee's deceitful conduct on a balance of probabilities; and (2) if so, whether the nature and degree of the dishonesty warranted dismissal. In my view, the second branch of this test does not blend questions of fact and law. Rather, assessing the seriousness of the misconduct requires the facts established at trial to be carefully considered and balanced. As such, it is a factual inquiry for the jury to undertake. … [51] I conclude that a contextual approach to assessing whether an employee's dishonesty provides just cause for dismissal emerges from the case law on point. ... This principle necessarily rests on an examination of the nature and circumstances of the misconduct. Absent such an analysis, it would be impossible for a court to conclude that the dishonesty was severely fraudulent in nature and thus, that it sufficed to justify dismissal without notice.

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… [158] The second inquiry in the McKinley analysis is whether dismissal is proportionate to the severity of the misconduct: [53] Underlying the approach I propose is the principle of proportionality. An effective balance must be struck between the severity of an employee's misconduct and the sanction imposed. The importance of this balance is better understood by considering the sense of identity and self-worth individuals frequently derive from their employment, a concept that was explored in Reference Re Public Service Employee Relations Act (Alta.), [citation removed], where Dickson C.J. (writing in dissent) stated at p.368: Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and,

as importantly, a contributory role in society. A person's 2014 BCSC 2151 (CanLII) employment is an essential component of his or her sense of identity, self-worth and emotional well-being. This passage was subsequently cited with approval by this Court in Machtinger v. HOJ Industries Ltd. [citation removed], and in Wallace [citation removed]. In Wallace, the majority added to this motion by stating that not only is work itself fundamental to an individual's identity, but "the manner in which employment can be terminated is equally important". … [57] Based on the foregoing considerations, I favour an analytical framework that examines each case on its own particular facts and circumstances, and considers the nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship. Such an approach mitigates the possibility that an employee will be unduly punished by the strict application of an unequivocal rule that equates all forms of dishonest behaviour with just cause for dismissal. At the same time, it would properly emphasize that dishonesty going to the core of the employment relationship carries the potential to warrant dismissal for just cause. [159] In summary, the defendants must establish that Mr. Kirby's misconduct, and the nature and circumstances of the misconduct warranted dismissal: Geluch, at para. 85. This factual determination must be contextually examined with reference to the principle of proportionality

[162] As further noted in Kirby, although the misconduct in McKinley was employee dishonesty, this test is applicable to other forms of misconduct (para. 157). The test can be summarized as:

1) Has the evidence proven the employee's misconduct?

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2) Was dismissal proportionate to the severity of the misconduct?

[163] ITU argues that throughout the course of the plaintiff’s second employment period, she displayed insubordination, a refusal to follow the requests of her superiors, and issued public comments through social media that were incompatible with her continued employment with ITU.

[164] ITU notes that in considering the plaintiff’s conduct, a number of cases have found that a culmination of instances of insubordination, including publishing unprofessional comments, have constituted cause for dismissal. 2014 BCSC 2151 (CanLII)

[165] In Grewal v. Khalsa Credit Union, 2011 BCSC 648, aff'd 2012 BCCA 56, the Court held that the defendant had cause to terminate the plaintiff after she had delivered a disrespectful and inflammatory letter to a superior. In it the plaintiff made allegations of unwarranted invasions of privacy and was disrespectful in tone and language. Goepel J., at para. 111, held that the letter was irreconcilable with the plaintiff’s continued relationship with the employer:

[111] Ms. Grewal was the branch manager of the credit union. She was in a position of trust and responsibility. In order for her to perform her duties, it was essential she retain the confidence of her superiors. The September 1 Letter permanently undermined the employment relationship and made it impossible for Ms. Grewal and [the Chief Executive Officer] to continue working together. In the totality of the circumstances, the September 1 Letter constituted just cause for dismissal: Van Der Meij v. Victoria Immigrant and Refugee Centre Society, 2008 BCSC 954 para. 60. I find that KCU had just cause to terminate Ms. Grewal.

[166] The Court viewed the letter as the culmination of ongoing difficulties with the employee, and that while prior issues may not have justified termination, the defendant was entitled to consider her past misconduct in determining whether it had just cause for dismissal:

[105] Taken by themselves, and without regard for the September 1 Letter, I find that Ms. Grewal's conduct had not yet reached the point where KCU had cause to dismiss her. As of September 1, [the Chief Executive Officer] had not completed his investigation into the mortgage. Whether that investigation would have uncovered sufficient evidence to justify her dismissal is not something I need determine.

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[106] However, the September 1 Letter tips the balance. The language of the letter was disrespectful and inflammatory. The accusations were serious and covered most aspects of her working relationship. ... … [110] As noted in McKinley v. BC Tel, [2001] 2 S.C.R. 161, Ms. Grewal's conduct must be assessed within a contextual approach. The September 1 Letter cannot be considered in a vacuum. It was the culmination of a litany of ongoing difficulties in the employment relationship. While the prior matters in themselves may not have justified termination, KCU was entitled to consider her past misconduct in determining whether it had just cause for dismissal: Nossal v. Better Business Bureau of Metropolitan Toronto Inc. (1985), 19 D.L.R. (4th) 547 (Ont.C.A.).

[167] In Van Der Meij v. Victoria immigrant and Refugee Centre Society, 2008 2014 BCSC 2151 (CanLII) BCSC 954, the Court held that an employer had cause to dismiss an employee after the employee wrote a letter to the Board of Directors criticizing the executive director of the defendant. The employee's criticism included stating that the executive director was “acting out of fear” and that he had shown “cold and uncaring disregard” for the employee's health. In coming to its conclusion regarding cause, the Court held:

[60] I accept as a general proposition that an employee should be entitled to criticize her superiors without fear of immediate dismissal. However, in some circumstances criticism can undermine the employment relationship and render it impossible for the employee and her manager to continue working together. When this occurs it is clear that the employee's conduct will constitute just cause for immediate dismissal. [61] ...The manner in which the employee voices her criticism of her manager is also relevant. If the criticism is disrespectful in tone or language or is otherwise irreconcilable with continued employment then the employee's actions may give rise to cause for immediate dismissal regardless of whether the complaints are justified. … [66] I am also satisfied that the language and tone of the September 25th letter, insofar as Ms. Van Der Meij's complaints about Mr. Gaete are concerned, were disrespectful, pejorative, and unnecessarily inflammatory. Several times Ms. Van Der Meij referred to Mr. Gaete as acting or taking no action based on fear and weakness. Instead of describing the circumstances in a neutral manner to allow the board of directors to come to their own conclusions, Ms. Van Der Meij allowed her emotions to creep into her language; she was unreservedly critical of Mr. Gaete's handling of several workplace issues and pointed to serious flaws in Mr. Gaete's character and ability to manage as the underlying cause of the problems in the department. …

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[72] In summary, I find the letter of September 25th gave rise to just cause for Ms. Van Der Meij's immediate dismissal because it was inaccurate and exaggerated, disrespectful and inflammatory in tone and language, and because it was sent to the board of directors without first giving Mr. Gaete an opportunity to deal with the problems raised and make an effort to salvage the working relationship between himself and Ms. Van Der Meij. In my view both the content of the letter and the manner in which Ms. Van Der Meij brought her complaints to the attention of the board of directors constituted a fundamental breach of the trust relationship between her and Mr. Gaete. It effectively ended the employment relationship because Mr. Gaete could no longer work with someone who had no respect for his management abilities, his character, and his ethical standards.

[168] In Fennel v. Kelowna Yacht Club, 2012 BCPC 545, the Court held that an 2014 BCSC 2151 (CanLII) employer was justified in dismissing an employee for cause after the plaintiff sent an e-mail to the defendant’s board of directors. The e-mail referred to the chair of the board as “drunken”, and made inaccurate statements regarding the security at the club. In considering whether the letter constituted cause, the Court held at paras. 46 and 47:

[46] The content, tone and manner in which Mr. Fennel communicated with the Club's Board destroyed the employment relationship and were irreconcilable with his continued employment. They made it impossible for Mr. Fennel and his CEO to continue working together. In fact, Mr. Fennel recognized this in his conversation with Christine Anderson the day after he sent the email. He intended to make the Board choose between himself and Mr. Smith. Moreover, Mr. Fennel has not expressed regret for his action nor sought to apologize. [47] As in the Van Der Meij case, I find Mr. Fennel's August 13 email to constitute just cause for immediate dismissal because it was inaccurate and exaggerated, insolent, insubordinate, disrespectful, and inflammatory in tone and language, and because it was sent to the Board of Directors without first giving Mr. Kay or Mr. Smith an opportunity to deal with the problem and attempt to salvage the working relationship. Both the content of the email and the manner in which it was sent to the Board constituted a fundamental breach of the trust relationship between Mr. Fennel and his employer.

[169] In Chen v. Sable Fish Canada Inc., 2010 BCSC 444, the Court held that an employer was justified in dismissing an employee for cause after the employee wrote a letter to forty recipients, including the employer's shareholders, criticizing the employer. Criticism included allegations of favouritism, bad management, and impending financial ruin. The Court, following Van Der Meij, held that these comments were:

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[20] …clearly an attempt, in part, to embarrass both management and the board of directors to the shareholders.

[170] In the case at bar, ITU says that the facts show that the plaintiff published a number of disrespectful, pejorative, and unnecessarily inflammatory comments on social media sites. She did not just issue a letter to a superior, or to a board of directors, but rather she published her comments on a forum with a worldwide audience, and knowing she had followers in the global triathlon community.

[171] ITU contends that the plaintiff’s comments on Twitter show a lack of respect

and poor judgment and professionalism for a senior manager of communications. 2014 BCSC 2151 (CanLII)

[172] ITU also says that the post to the plaintiff’s blog is an open letter criticizing her immediate supervisor and employer. ITU submits that the blog's content is unprofessional, pejorative, and beyond inflammatory. The plaintiff directly compared Ms. Barnett to a child beater:

“when I was a kid, my mom used to beat the crap out of me” “my mother is the only person on earth that was so skilled as making me feel like an insignificant bag of shit and made me feel as though i was never good enough, for anything, until today” “today for the first time in a long time i felt like that kid all over again; beaten, discouraged, alone and scared, after the most disappointing conversation you could possibly have with your boss.” “the same horrible, sickly feeling of someone above you kicking you down with lies and senseless put downs and insults and zero reality all flooded back in a horrible, despicable wave of nostalgia.”

[173] These visceral remarks that recall moments of being “beaten, discouraged, alone and scared” were in response to Ms. Barnett's refusal to grant the plaintiff her requested vacation. This, in the opinion of the plaintiff, was worthy of comparison to physical and psychological violence.

“i don't feel like i've done anything wrong but it doesn't matter because this person that I stupidly thought cared doesn't give a shit and just wants to beat my head in.” “her perception of reality is so clouded and distorted that all she sees is her own version and not the real version of truth.”

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“sometimes people change for the worst and sometimes people are just evil pieces of shit and just need to bring you down to make themselves feel more powerful or better than you.”

[174] ITU submits that the plaintiff’s subsequent tweets during Congress, implying that the international federation of an Olympic sport uses propaganda, and that Executive Board members had gotten drunk during the event, were inexcusable. Her comments could have no other effect other than to destroy her employment relationship with ITU, and make it impossible for ITU and the plaintiff to continue working together. 2014 BCSC 2151 (CanLII) [175] As for the plaintiff’s submission that she was entitled to a warning, prior to her termination, ITU submits that not all situations warrant a warning, it depends on the gravity of the conduct. That said, ITU notes that according to Ms. Barnett the plaintiff was counselled by her on “numerous occasions” that the plaintiff’s communications were inappropriate. As well, communications were at the core of the plaintiff’s employment, not a peripheral part of her employment.

[176] ITU argues that a Court can find that an official warning, that an employee's job is in jeopardy, is not necessary before dismissal for cause can be found, as was the situation in Gichuru v. Smith, 2013 BCSC 895, rev’d on other grounds, 2014 BCCA 414. Further, a warning is not necessary where the triggering event is serious misconduct or where a triggering incident gives rise to cause in itself, according to Fonceca v. McDonnell Douglas Canada Ltd. (1983), 1 C.C.E.L. 51 (Ont. H.C.) at 57- 58:

Clearly, an employer is entitled to dismiss an employee who has been warned from time to time that he has an incompatible personality conflict but refuses or is unable to improve or correct his relationships and similar incidents occur later. Where the incidents complained of are trivial, but annoying, then warnings are necessary before termination for cause is justified. However, where incidents, each in themselves, are serious, even though not sufficient to justify dismissal at the time, then a warning is not essential. In the present case, though no written or oral warning was given, any reasonable person having had three union grievances filed against him and having been told consistently by his employer to try to work and co- operate with people, should know that if such conduct continued he would be liable to dismissal.

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[177] ITU says that the plaintiff in the case at bar had in fact been warned that her communication style was inappropriate, and she had been asked to refrain from making controversial comments over social media. However, claims ITU, she was not prepared to change.

[178] In any event, ITU submits that the blog and or tweets, sent by the plaintiff during Congress, negated the need for any warnings to her whatsoever given the severity of her comments.

[179] Regarding the plaintiff’s argument on condonation, ITU says it did not, at any 2014 BCSC 2151 (CanLII) time, condone her conduct. ITU says it took a reasonable amount of time, in light of all of the circumstances, before coming to the decision to dismiss the plaintiff.

[180] The time from when Ms. Barnett discovered the blog post on October 5th, to the time of dismissal on November 20th, was approximately six weeks. Further, Ms. Barnett testified that she had firmly made her decision to dismiss the plaintiff after Congress at the end of October 2012, which was only three weeks after discovering the blog post.

[181] ITU submits that the onus is on the plaintiff to show that after an incident justifying dismissal, the employer took an unreasonable period to decide whether to dismiss the plaintiff, as per Kennedy v. Canam Marketing Ltd., 2006 BCSC 1507, at paras. 31-32. An employer is entitled to a reasonable time to decide whether or not to dismiss an employee after becoming aware of misconduct, and should be able to consider all realistic options in the circumstances: Clark v. Horizon Holidays Ltd. (1993), 45 C.C.E.L. 244 (Ont. C.J.), at paras. 48-49.

[182] At the time of the blog post, ITU was less than two weeks away from elections at Congress, one of the largest and most important events for the international triathlon governing bodies that takes place only once every four years. Ms. Barnett testified that she was afraid that any immediate action would have led to the plaintiff posting more vitriolic material on social media. This would have been a difficult and divisive situation on the eve of an important event. Faced with this decision,

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Ms. Barnett chose the lesser of two evils and decided to wait until after Congress to dismiss the plaintiff when the plaintiff insisted on attending at the event.

[183] ITU then allowed the plaintiff to take her vacation time, waiting until she returned from vacation on November 20, 2012 to dismiss her. This was an act of good faith on the part of ITU. Ms. Barnett testified that it was her intention to dismiss the plaintiff when she returned from vacation. At no point during the plaintiff’s vacation did ITU condone the actions of the plaintiff, or allow her to continue working in the normal course. It was a gesture of both professionalism and thoughtfulness on

Ms. Barnett’s part borne out of the knowledge ITU would soon be terminating the 2014 BCSC 2151 (CanLII) plaintiff’s employment. Contrary to the plaintiff’s submission in argument, there is no evidence that ITU and the plaintiff had a “close” personal relationship by October or November of 2012 which would have clouded Ms. Barnett's judgment and led to any condonation. Again, Ms. Barnett at all times acted out of professionalism, not personal favouritism.

[184] ITU insists that at no point did Ms. Barnett or ITU condone the plaintiff’s actions. It was merely being mindful of the surrounding circumstances and trying to protect the organization from further embarrassment.

[185] On the issue of damages, ITU made the following argument.

[186] If the Court determines that ITU did not have cause to summarily dismiss the plaintiff, then the Court must determine the reasonable notice period owing to her. ITU says that the facts show that the plaintiff first began her employment with ITU in March 2007. She worked at ITU for a period of 23 months as the Communications Manager. She then voluntarily left her employment with ITU in February 2009 to take a position with EA Sports. After seven months with EA Sports she voluntarily left her employment in August 2009. After resigning from EA Sports, she went through a period of unemployment and then started taking on contract work, including a contract with VANOC.

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[187] In September 2010, the plaintiff began doing some contract work with ITU (i.e. preparing the annual book). In December 2010, the plaintiff applied for the position of Senior Communications Manager at ITU. ITU hired her into that position in January 2011, almost two years after she had resigned from her first period of employment with ITU. ITU dismissed the employee on November 20, 2012; 22 months after being hired.

[188] Of the four factors for determining reasonable notice, being age, length of service, nature of employment, and availability of alternative employment, the length

of the plaintiff’s service is disputed by the parties. In total, the gap between the 2014 BCSC 2151 (CanLII) plaintiff's first period of employment with ITU, and her second period was almost two years.

[189] ITU notes that the plaintiff voluntarily left her employment with ITU when she received an offer that fit with her interests (i.e., tennis), and it was a stepping stone in her career. When she subsequently left her employment with EA Sports approximately seven months later, she did not immediately seek to return to ITU. Instead, she spent time with family and sought other employment.

[190] ITU says it was not until over a year after she left EA Sports, in September 2010, that she had discussions about contract work with Ms. Barnett, which subsequently turned into a full time position with ITU effective January 2011. ITU says that there has been no evidence led that her prior period of employment would be recognized for employment purposes, and that for the purposes of determining notice, the period of January 2011 to November 2012 (i.e., 22 months) should be used as the period of employment for determining notice.

[191] ITU also notes that the plaintiff was not an employee who was looking for long term secure employment. On the contrary, she did not stay at any position longer than one to two years. She did not accept benefit coverage at ITU, and as the plaintiff stated, she was always looking for opportunities to “grow”.

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[192] ITU submits that the Court has the discretion to disregard interruptions in service. In Robinson v. Team Cooperheat- MQS Canada Inc., 2008 ABQB 409, the Court held at para. 93:

[93] Courts have the discretion to disregard interruptions in service in determining the notice period, and will examine the break in context of the full period of employment.

[193] In Robinson, the Court came to the conclusion that a break of employment of two to three years, in the middle of two periods of employment consisting of 31 years, where the employee worked for two other companies, was too long to ignore: 2014 BCSC 2151 (CanLII)

[97] Mr. Robinson worked for two other companies between 1986, when he left Cooperheat, until 1989 when he returned to the company. Mr. Robinson's resume confirms that from 1986 to 1988 he worked for Maritime Stress Contracting in Dartmouth, Nova Scotia and from 1988 until 1989 with Bell Camp Fabrication in Ingersoll, Ontario. Neither of these entities had any relationship to Cooperheat. [98] A nearly three year break in service is sufficiently long that Mr. Robinson's past service should not be recognized in determining his length of service: Foster v. Knill, [1990] B.C.J. No. 1165 (B.C. S.C.); Hall v. Giant Yellowknife Mines Ltd., [1992] N.W.T.J. No. 167, 44 C.C.E.L. 101 (N.W.T. S.C.); Matheson v. Canadian Freightways Ltd., [2003] B.C.J. No. 2624, 2003 BCSC 1728 (B.C. S.C.). [99] Here the record of employment confirms Mr. Robinson's start date to have been April 4, 1989, a period of 15 years, and 11 months from his last day paid of February 25, 2005. For the purposes of determining his length of service in these circumstances I conclude that 16 years is the appropriate term. [100] I conclude that all of these factors place Mr. Robinson's reasonable notice period at 18 months or approximately $211,000 having regard to Mr. Robinson's personal circumstances, and similar case law.

[194] ITU further submitted that courts have held that if the decision to leave the previous period of employment was the employee's alone, and he was not enticed to return to the employer, then it is unlikely the Court will consider both periods of employment: Leonard v. Kohler Canada Co. (2009), 2010 C.L.L.C. 210-007 (Ont. S.C.J.). The Court in Gibara v. ABN Amro Bank Canada (2003), 29 C.C.E.L. (3d) 80 (Ont. S.C.J.), at para. 10, came to a similar conclusion holding:

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[10] In my view the authorities establish that where an employee has quit and later returns, the earlier period will not be considered in determining reasonable notice unless there is agreement to that effect or circumstances such as inducement to leave a secure position.

[195] In Hall v. Giant Yellowknife Mines Ltd. (1992), 44 C.C.E.L. 101 (N.W.T.S.C.), the Court found that an employee who voluntarily left his employment and returned in a different position could not take into account multiple periods of employment for the purpose of determining reasonable notice.

[196] In reviewing the case law, ITU submits that it is clear in the case at bar that only the plaintiff’s second period of employment of 22 months should be considered 2014 BCSC 2151 (CanLII) in determining reasonable notice.

[197] ITU notes that the amount of reasonable notice is a question of fact to be decided with reference to each particular case having regard to the character of employment, the length of service, the age of the employee, and the availability of similar employment: Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.). ITU also notes that the British Columbia Court of Appeal has held that in short service cases there is no predetermined floor for reasonable notice: Saalfeld v. Absolute Software Corp., 2009 BCCA 18.

[198] ITU argues that for a young employee with the plaintiff’s skills, responsibilities and salary, and 22 months of employment, the cases suggest that an average of two to three months' notice is reasonable.

[199] In Phillips v. Hilinex Packaging Inc. (1994), 5 C.C.E.L. (2d) 105 (B.C.S.C.), the employee was a 40-year-old regional sales director earning approximately $58,000. He had been employed by the defendant for four and a half years. The Court held that the appropriate notice period was three and a half months.

[200] In Dias v. Paragon Gaming EC Co., 2010 ABPC 390, a 41-year-old employee earning $61,000 was terminated from his position as Games Manager at a casino after 18 months service. The Court awarded four months’ notice, this however, included a finding of inducement on the part of the employer. The Court held that

Kim v. International Triathlon Union Page 58 had there been no inducement the appropriate notice period would have been two months.

[201] In Crimi v. Sun Sun Holding Ltd., 2009 ABPC 394, a 46-year-old employee, earning $80,000 and profit sharing, was terminated as an autobody technician after three years' service. The Court held that the employee was entitled to three and a half months salary. In Roe v. Schneider National Carriers Inc. (2006), 48 C.C.E.L (3d) 153 (Ont. S.C.J.), a 43-year-old employee was terminated from his position as an engineer trainer, earning over $63,000 per year, after three years’ service. The

Court held that the employee was entitled to three months’ notice. 2014 BCSC 2151 (CanLII)

[202] Regarding mitigation, any money earned through the plaintiff’s mitigation during the notice period is to be deducted from the damages otherwise payable to the employee. Where an employee secures alternative employment at a higher salary, either the total amount earned during the period of reasonable notice may be deducted, or the employee’s damages will run only until the date he or she commenced employment. Where the employee actually earns a lower sum in the new position, the total earnings over the balance of the period of reasonable notice are deducted from the damages which are otherwise payable. This was set out in Ellis v. Whitepass Transportation Ltd. (1983), 42 B.C.L.R. 351 at 358-362 (C.A.); and Fitzgibbons.

[203] In that regard, ITU says that the plaintiff earned $3,300 in the last two weeks of January 2012 which should be deducted from any award of damages made.

6. Analysis

A. Termination of the Plaintiff’s Employment

[204] The decision in Kirby contains a useful summary of the law of wrongful dismissal and states that the contextual approach is applied to determine whether misconduct constitutes just cause, and that proportionality must be applied in striking the balance between the severity of an employee’s misconduct and the sanction imposed.

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[205] I am also mindful of the law that in exceptional circumstances, a single act of misconduct can justify summary dismissal, for example, where it is serious and incompatible with an employee’s duties and prejudicial to an employer, or irreparably harms the relationship between employer and employee.

[206] However, in the case at bar ITU did not rely on a single act of misconduct by the plaintiff to justify her dismissal for cause. Although counsel for ITU submitted in argument that the October 5th blog was, in and of itself, serious misconduct and a ground for dismissal of the plaintiff for just cause, this was not pleaded by ITU who

alleged in its amended response that it was the plaintiff’s conduct in the months 2014 BCSC 2151 (CanLII) leading to the termination of her employment that was unprofessional and insubordinate. Moreover, Ms. Barnett was very clear in her evidence that ITU relied upon the plaintiff’s tweets in August 2012 and in the fall of 2012, the October 5th blog and receipt of the letter from Mr. Beeche as just cause for the plaintiff’s termination. She also testified that rather than relying upon a particular incident for just cause, it was a situation of compounding instances over a number of months which culminated in the tweets that the plaintiff posted while she was working in Auckland and the October 5th blog.

[207] Thus, the issue I must decide is whether, on the evidence, ITU has met the onus of proof upon it to establish that it had cumulative case for the plaintiff’s dismissal.

[208] In my opinion, the law that is applicable to the facts in the case at bar is set out by Wong J. in Ogden, a case where the defendant relied upon cumulative cause, where at paras. 271-274 His Lordship said, as follows:

[271] Before applying the law to the facts in the case at bar, I will briefly address CIBC’s contention is that, cumulatively, the prior incidents and the Wire Transfer Incident amounted to cause. [272] In order for an employer to be able to rely on a final warning letter as part of an allegation of cumulative cause, the alleged “final warning” must necessarily precede the ultimate and final act of misconduct.

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[273] The employee must be aware of the final warning and be given a “reasonable opportunity to improve.” In Lowery v. Calgary (City of), 2002 ABCA 237, the Alberta Court of Appeal summarized this principle as follows: [3] … Where the employer alleges cumulative cause for such dismissal, it must prove on the authority of Atkinson v. Boyd, Phillips & Co. Ltd. (1979), 9 B.C.L.R. 255, with which we respectfully concur on this point, that: 1. The employee was given express and clear warnings about his performance. 2. The employee was given a reasonable opportunity to improve his performance after the warning was issued. 3. Notwithstanding the foregoing, the employee failed to improve his performance. 2014 BCSC 2151 (CanLII) 4. The cumulative failings “would prejudice the proper conduct of the employer’s business”.[emphasis added] [274] The B.C. Supreme Court has adopted a similar approach in a bank case, Burden v. Bank of Nova Scotia, 1997 CanLII 2125 (BC SC), at para. 58: An employer may dismiss an employee summarily for repeated instances of unacceptable work performance, where the employer has shown it has established a reasonable and objective standard of work performance, warned of the consequences of failure to meet the standard and given the employee time and assistance to remedy her work performance. See: Babcock v. C. & R. Weikert Enterprises Ltd. (1993), 126 N.S.R. (2d) 170 (N.S.C.A.). [emphasis added in original]

[209] ITU takes the position that in the case at bar a warning to the plaintiff prior to her termination based upon cumulative cause was not essential because the severity of the comments contained in the October 5th blog and the tweets in August and the fall of 2012 negated the need for any warning to the plaintiff, and that, in any event, the plaintiff had been counseled by Ms. Barnett on numerous occasions that her communication style was inappropriate and had been asked by her to refrain from making controversial work related comments on social media.

[210] On this point, ITU relied on a number of cases that found that instances of insubordination, including publishing unprofessional comments, constituted cause for dismissal. However, not all of the cases cited by ITU involve cumulative cause, but rather a single incident of insubordination that triggered a decision by the employer to dismiss the employee. In any event, I do not think that the cases cited

Kim v. International Triathlon Union Page 61 by ITU support its position on the issue of whether in the circumstances of this case ITU had to warn the plaintiff before she was terminated.

[211] In Van Der Meij, the employee wrote a letter undermining the employment relationship that the Court held was ground for dismissal of the employee; in Fennel, the employee sent an email to the defendant’s Board of Directors that in tone, content and manner destroyed the employment relationship with the defendant; in Chen the employee was dismissed after writing a letter to the employer’s shareholders criticizing the employer. In my view, none of these cases can serve as

examples of termination by an employer for cumulative cause, or for negating the 2014 BCSC 2151 (CanLII) employer’s need to first give the employee a warning where an employer relies upon cumulative cause as grounds for dismissal.

[212] In Grewal, the employee’s employment as a branch manager at a credit union was terminated after her counsel sent a letter to her superior and the Board of Directors of the credit union. The plaintiff had been advised in writing that certain conduct was unacceptable and that certain breaches of the credit union’s policies and procedures had resulted in a loss of trust concerning her ability to carry on with her position. She had been warned that future failures to comply would result in serious disciplinary measures, including termination for cause.

[213] Subsequently, the plaintiff received several written notices from her superior criticizing aspects of her work. The plaintiff replied defending her conduct and her superior considered certain of her responses to be insubordinate and disrespectful. In any event, there was a history of tension between the plaintiff and her superior over certain events that transpired regarding her employment, and on September 1, 2006, the plaintiff’s counsel sent a letter to the plaintiff’s superior, with copies to the Board of Directors and the Deputy Superintendent of Credit Unions and Trusts, the content of which the plaintiff’s superior considered to be aggressive and containing accusations against him that he found surprising. The letter demanded that the plaintiff’s superior apologize for his conduct and refrain from future criticism of the plaintiff’s performance.

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[214] The main issue in the case was whether the plaintiff resigned or was dismissed from her employment. The Court found that the September 1st letter and the plaintiff’s subsequent conduct did not support an intention on the plaintiff’s part to resign. On the point of whether there was cause for dismissal, the employer took the position that the plaintiff’s continuing course of unsatisfactory conduct which culminated in the September 1st letter justified dismissal for cause. The Court found that the plaintiff’s past conduct had not yet reached the point where the credit union had cause to dismiss her, but that the September 1st letter “tips the balance”, finding that the language of the letter was disrespectful and inflammatory and that the accusations against the plaintiff’s superior were serious and covered most aspects 2014 BCSC 2151 (CanLII) of her working relationship. The letter was disrespectful in tone and language and was irreconcilable with the plaintiff’s continued employment.

[215] The Court also held that the September 1st letter permanently undermined the employment relationship and made it impossible for the plaintiff and her superior to continue working together.

[216] Another case relied on by ITU is Gichuru, where the plaintiff, an articling student, was terminated with notice. He claimed that he was wrongfully dismissed. Instead of completing assignments, he argued with the firm’s lawyers and expected them to justify work before he would take it on. In fact, he had been warned that his conduct was unacceptable, but he was not prepared to change, because he considered that what had been asked of him by his principal was unreasonable. The Court held that his behavior was such that the employment relationship could no longer viably subsist.

[217] Finally, in Fonceca, a case where the plaintiff came into conflict with his fellow workers, was considered a disruptive force, and where several group and individual grievances were lodged against him, the Court held that on the basis of the cumulative effect of his conduct that he was guilty of conduct incompatible with his duties and prejudicial to the defendant’s business. Steele J. held that although no written or oral warning had been given to the plaintiff, “any reasonable person having

Kim v. International Triathlon Union Page 63 had three union grievances filed against him and having been told consistently by his employer to try and work to cooperate with people, should have known that if such conduct continued he would be liable to dismissal…”

[218] In my opinion, the facts and decisions in Grewal, Gichuru and Fonceca do not support ITU’s position that there was no need for ITU to warn the plaintiff in the case at bar before her termination. In those cases, the employee had either received specific notice criticizing the employee’s conduct before termination, or the employee ought to have clearly understood from the surrounding circumstances that

the employee’s job was in jeopardy if the conduct continued. 2014 BCSC 2151 (CanLII)

[219] The facts in the case at bar are very different. To the extent that ITU considered the incidents relied upon for cumulative cause amounted to insubordination or other misconduct, the evidence is that from January 2011 until her termination on November 20, 2012, no written or oral warning was given to the plaintiff that the impugned social media posts were inappropriate and unacceptable and that if she did not cease and desist from such performance and change her ways that her continued employment was in jeopardy. On the contrary, she received an increase in her compensation, was permitted to continue in her position even after the October 5th blog, and at the time of her dismissal with notice she was merely told that her communication style did not align with that of the ITU.

[220] I am mindful of ITU’s position that given the plaintiff’s experience in the field of communications and the fact that she held a senior management position she ought to have known better than to use social media to comment in the manner she did. I am also mindful of, and accept the evidence, that Ms. Barnett spoke with the plaintiff on occasion about her communication style in general terms and at one point had to take the step of asking her to remove ITU’s name from the plaintiff’s Twitter handle. Nonetheless, the evidence is plain that Ms. Barnett never reprimanded, disciplined or criticized the plaintiff specifically regarding the content of the social media posts relied upon by ITU for cumulative cause, notwithstanding her insistence that she found them troubling, offensive, and, in the case of the October 5th blog, shocking.

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In the result, I find that Ms. Barnett’s discussions with the plaintiff about her communication style are not tantamount to, nor qualify as a warning, or warnings to the plaintiff in accordance with the established law on this point.

[221] Thus, even had I found that the social media posts amounted to an accumulation of misconduct and that the October 5th blog was the tipping point supporting the plaintiff’s termination for cause, I find that ITU cannot rely upon cumulative cause as a ground for the plaintiff’s termination because ITU did not give the plaintiff an “express and clear” warning about her performance relating to the

social media posts, and a reasonable opportunity to improve her performance after 2014 BCSC 2151 (CanLII) warning her. I should also say in this regard, that counsel for ITU conceded that ITU should not be able to rely upon the proof of the truth of the content of Mr. Beeche’s letter in support of its position on cumulative cause, as he was not called to testify as a witness at the trial. In fact, the plaintiff’s alleged conduct complained about in the letter was not even brought to her attention until after her termination.

[222] Accordingly, I find that ITU has not met the onus of proof upon it to establish cumulative cause for the plaintiff’s dismissal.

B. Damages for Wrongful Dismissal

[223] The first issue to be determined is whether the plaintiff’s damages should be based on her being employed with ITU for two or four years. The plaintiff submits that she was pursued by ITU for a more senior role than the one she had occupied during her first period of employment, and that when she was re-hired full time she was treated as if she had never left. Thus, claims the plaintiff, based on the decision in Roscoe v. McGavin Foods Ltd. (1983), 2 C.C.E.L. 287 (B.C.S.C.), she should be treated as a four year employee of ITU. ITU notes that in Roscoe, the plaintiff was a 26-year employee who had an eight month absence from his employment with the defendant and was enticed to return to the employ of the defendant.

[224] In Robinson, at para. 93, D. Lee J. held that “[c]ourts have the discretion to disregard interruptions in service in determining the notice period, and will examine the break in context of the full period of employment”.

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[225] In Leonard, B. Glass J. held:

17 Mr. Schorr presented submissions that there is support for including the period of 1979-1988 to accumulate 25 years of notice time. I do not accept the submission because the severance in 1988 was a decision of Mr. Leonard to leave. He was not enticed to come from either his own business or from another employer when he returned to work with the Defendant in 1992…

[226] In Gibara, Brennan J., at para. 10, held that “where an employee has quit and later returns, the earlier period will not be considered in determining reasonable notice unless there is agreement to that effect or circumstances such as inducement

to leave a secure position.” 2014 BCSC 2151 (CanLII)

[227] In Hall, de Weerdt J. said:

2 There were three separate and distinct periods during which the plaintiff was employed by the defendant. Added together, these periods total in excess of 31 years. The first period of two years was brought to an end when the plaintiff terminated his employment with the defendant to go to Edmonton, Alberta, where he entered other employment as a truck driver. Returning to Giant Mine a year later, he re-entered the defendant’s employment and remained in that employment for some 13 years. He then again voluntarily left the defendant’s employment to go into business as a poultry farm operator with a relative. A little over a year later he again returned and re-entered the defendant’s employment, remaining for some 16 years. On neither of his re-engagements with the defendant was there any mention of his retaining seniority or other rights in virtue of his previous period or periods of employment by the defendant. 3 I find that the period of the plaintiff’s employment, for purposes of fixing the appropriate length of notice to which he was entitled on dismissal, was no more than 16 years in these circumstances.

[228] In the case at bar, I find that only the period of the plaintiff’s employment between January 2011 and November 20, 2012, should be considered for the purpose of awarding her damages for wrongful dismissal. The plaintiff’s first period of employment with ITU was less than two years, after which she left voluntarily to take up a new position with EA Sports. Although she did some paid work for ITU during the gap in her employment with it, it was not until January 2011 when the plaintiff was re-hired by ITU full time. I find that the plaintiff’s damages for wrongful dismissal should be based on a period of employment with ITU of 22 months.

Kim v. International Triathlon Union Page 66

[229] On the issue of mitigation, I disagree with ITU’s position that the fact that the plaintiff went to France in early 2013 was a significant distraction to the plaintiff’s job search. Nor do I agree that the plaintiff limited her search to jobs within the sports industry.

[230] Therefore, upon a review of the authorities cited by the parties, and having regard to the character of the plaintiff’s employment with ITU, her 22 months of employment, her age, and the availability of similar employment opportunities, I find that five months’ notice is reasonable as damages, less $3,300 which is the amount

the plaintiff earned in the last two weeks of January 2013. The plaintiff is also 2014 BCSC 2151 (CanLII) entitled to receive her lost MSP benefits.

“B.I. Cohen J.” The Honourable Mr. Justice B.I. Cohen