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Kelowna realtor fined $1K for not paying employee wins appeal

Image Credit: ADOBE STOCK
January 19, 2021 - 7:00 AM

A Kelowna realtor who was fined $1,000 for failing to pay a former employee wages has won an appeal to have the case revisited.

In the Jan. 7 Employment Standards Tribunal decision, realtor Kevin Cheale argues former handyman, Bradley McDermott, "just stopped" coming to work and did not have his employment terminated as the tribunal had found and therefore was not owed severance pay.

Tribunal member Carol Roberts agreed, saying the original tribunal delegate made an error by “acting on a view of the facts that could not reasonably be entertained.”

Cheale, who owns a property management and rental business under the name Kevin Cheale Personal Real Estate Corporation, was previously fined $1,000 and ordered to pay McDermott $1,099 for wages, vacation pay, and compensation for length of service, following a tribunal ruling in July 2020.

He argued the former employee, whose job is referred to as a "handyman" in the decision, failed to turn up to work July 24, 2019 and didn't answer his phone when he was called.

According to the decision, the handyman showed up to work one week later on Aug. 1, but "did not want to talk about it" when he was asked where he was on July 24. After Aug. 1, he "just stopped reporting for work," says the decision.

The decision says Cheale called the handyman on several occasions to enquire about where he was, but he never answered the phone. The handyman gave evidence at the original hearing that he did not respond to the phone calls as Cheale was threatening him to "come after him with a lawyer.”

The decision says that both parties gave conflicting evidence about what happened on Aug. 1.

The handyman says Cheale told him he was “being let go” while the realtor says he did not fire the handyman and that he simply stopped showing up for work.

In the appeal, Cheale argues the original delegate “discriminated” against him, and “selectively recounted” the handyman’s evidence, while failing to give appropriate weight to his “character.”

Cheale argues the handyman had told a colleague he only intended to work only as long as needed to collect worker's compensation benefits and that he’d been injured several months beforehand.

According to the decision, the handyman submitted a WorkSafe B.C. claim on Aug. 2. The decision says the claim was unsuccessful.

While the appeal Tribunal rejected some of Cheale’s arguments, the tribunal member does agree that the original delegate did not give “appropriate weight” to all of the circumstances surrounding the handyman’s conduct, including the comments about working long enough to be able to collect worker’s compensation and submitting a claim Aug. 2.

“In my view, the delegate erred in law in failing to fully address the employer’s argument that the employee had abandoned his employment,” the tribunal member says in the decision. “It is my view that (the delegate) did not fully consider whether a reasonable person, viewing the circumstances objectively, would have understood from the employee’s words and actions, that he had abandoned the contract.”

In granting the appeal the matter will now go back to an Employment Standards Tribunal for reconsideration.

To contact a reporter for this story, email Ben Bulmer or call (250) 309-5230 or email the editor. You can also submit photos, videos or news tips to the newsroom and be entered to win a monthly prize draw.

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