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

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 Kim v. International Triathlon Union Page 2 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. Kim v. International Triathlon Union Page 3 [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 Kim v. International Triathlon Union Page 5 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. Kim v. International Triathlon Union Page 6 [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.

Load more