The B.C. Supreme Court has awarded a former employee of one of Port Moody's most prominent businesses more than $200,000 in damages for wrongful termination.
Hon. Justice Jon Sigurdson found that Kent Smith's actions while working at Pacific Coast Terminals amounted to an error in judgement but not purposeful misconduct, and that he should be awarded damages for lost income, pension contributions, bonus and car allowance totalling $212,463.92. The judge denied any damages for mental suffering or punitive damages.
Smith was fired from his role as PCT's manager of maintenance and engineering in October 2013 after Port Metro Vancouver (PMV) threatened to issue a stop-work order when it discovered construction work had started on two projects at the Port Moody site without PMV having issued the necessary permits.
He was terminated without cause and offered a nearly $400,000 severance package.
But when senior staff later accessed Smith's computer, they discovered new issues, prompting PCT to revoke the severance offer and notify Smith they were investigating him for misconduct.
Smith had worked for PCT since 1997 and was responsible for overseeing construction work, including two projects in 2013 — a wastewater treatment project (valued at $4 million) and a new facility to handle canola oil (valued at $35 million) — for which he was to obtain the necessary PMV permits. Permit application packages for both projects were submitted in July 2013. The following month PCT began preliminary work on the projects without PMV approval.
In conversations between Smith and his superiors in August and September that year, PCT alleged Smith had deliberately misled them about whether the preparatory work was allowed but Judge Sigurdson disagreed and found it amounted only to an error in judgement.
"While I have concluded that [Smith] did not actively lie or misrepresent the situation, he made an error in judgement and was overly confident in his assessment… that he felt that as the Port was aware of the start date for work there was no problem with proceeding," Sigurdson wrote in his decision.
Issues that arose following Smith's termination in October 2013 surfaced in a search of his computer files.
PCT found Smith had participated in a salary review for a fellow PCT employee with whom he was romantically involved and was involved in her other employment matters, including assisting her in negotiating a severance buyout. They also discovered Smith had allegedly divulged a confidential board decision to a third party, and that he had stored pornography on the company's server contrary to its IT policy.
PCT had argued that while the individual incidents may not have been grounds for termination, the cumulative effect showed a character that did not meet the standards for continued employment.
But Judge Sigurdson stated that because he remained unconvinced that Smith had intentionally misled PCT about the permitting issue, the subsequent issues were of themselves not enough to warrant termination with cause.
"Although there is conduct that the defendant has demonstrated that is not acceptable, I find that objectively the proven conduct in the circumstances of this employment relationship falls short of justifying summary termination," Sigurdson wrote in his decision.
Sigurdson determined that Smith was in a conflict of interest in not disclosing his relationship with a fellow employee in 2006 when he participated in her salary review. He also found Smith made a mistake in sharing a confidential board decision with a third party but, given the public knowledge that PCT was pursuing the potash business, it was not a deliberately dishonest act.
That Smith had stored pornography on PCT's server was also not itself cause for termination, the company acknowledged. Smith had testified he had long since forgotten about the material — it was circulated as email attachments about a decade earlier, during a time when the corporate culture was markedly different, and was in a personal folder that Smith had not accessed since then — but as a senior manager Smith should not have tolerated its sharing among employees, Sigurdson stated.
"Although I do not suggest that the conduct that I have found occurred… is acceptable for a senior employee in a position of trust, I have concluded, taking all the proven conduct into account…[PCT] has not persuaded me that summary termination of Mr. Smith's employment is warranted," Sigurdson wrote.
Reached on Thursday, PCT's Leslie replied by email that the decision showed Smith acted "in a number of ways contrary to his duties to PCT and allowed his personal interests to interfere with his obligations to the company."
"We believe that Mr. Smith's actions did not represent or follow the standards expected from employees of our company."
Leslie said PCT stands by its decision and is "considering our legal options."
