When A Lie Can Lose You Your Job
Howard Levitt Silence is not always golden. Huntley Zia said nothing after realizing his employer, Telus, had been overpaying him for more than three years -- a decision that cost him his job. Zia was asked to assist in a project to modernize a telephone system in Thailand, which required a temporary relocation abroad. Before accepting the post, Zia negotiated a transfer allowance to be paid while he was in Thailand. After he returned to Vancouver, the transfer allowance continued for more than three years before it was detected. Telus could not understand why the payments were being made. Its documentation was sparse and its institutional memory impaired because of the departure of some managers. When he was questioned about these payments, Zia maintained they were a permanent part of his compensation to reward him for his skills in international work. The company was skeptical. Interviews with Zia's former managers established that the allowance was only intended to be paid while he was abroad. Only a payroll oversight had caused these payments to continue. But when Zia was asked for reimbursement, he persisted in insisting the payments were rightfully his and refusing to repay them. Telus began deducting the overpayments from Zia's pay-cheque. Zia responded by suing his employer, claiming Telus had no authority to deduct the money. In the interim, he continued to carry out his duties. Telus gave Zia an ultimatum: Drop your lawsuit or you will be fired for cause. When he refused, he was fired. Zia then filed an action for wrongful dismissal. Telus counterclaimed for the salary overpayments. Mr. Justice Sidney Frankel of the British Columbia Supreme Court, found that Zia knew he was being overpaid and wrongfully took advantage of his employer's mistake for several years. When the error was discovered, he persisted in mounting a defence he knew to be baseless. Telus was within its rights to deduct the excess payments from Zia's salary under the Canada Labour Code. Zia's behaviour and response, culminating in filing the lawsuit, effectively destroyed his employment relationship with Telus. Under the circumstances, the court ruled, Telus had just cause to terminate him. Zia was ordered to repay the balance of the overpayments.
Howard Levitt, counsel to Lang Michener LLP, is author of The Law of Dismissal in Canada and The Quick Reference to Employment Law, and editor-in-chief of The Dismissal and Employment Law Digest. He can be reached at hlevitt@langmichener.ca © National Post 2008 Don’t leave your future to chance, let a leading expert assess your case. Contact us at 416-307-4019. This is an edited and abridged version of a lengthier article that appeared in the National Post.
© National Post 2008 Don’t leave your future to chance, let a leading expert assess your case. Contact us at 416-307-4019. This is an edited and abridged version of a lengthier article that appeared in the National Post.
© National Post 2008 Don’t leave your future to chance, let a leading expert assess your case. Contact us at 416-307-4019. This is an edited and abridged version of a lengthier article that appeared in the National Post.
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