2929-99-ES Yara Prochazka, Applicant v. Canada-Czech Republic Chamber of Commerce and Kennedy Travel Bureau Ltd. and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 32005744 and 32005748
BEFORE: Anthony Brown, Vice‑Chair.
APPEARANCES: Yara Prochazka on her own behalf; George Corn for Canada Czech Chamber of Commerce; no appearing for Kennedy Travel Bureau Ltd.; Karima Chatur for the Ministry of Labour.
DECISION OF THE BOARD; August 3, 2000
1This is an application pursuant to section 67 the Employment Standards Act (“the Act”) for review of a refusal by an Employment Standards Officer to order termination pay to be paid to the applicant.
2A hearing was held on June 29, 2000.
3The issue is whether the conduct of the applicant , Yara Prochazka was wilful misconduct within the meaning of subsection 57(10) of the Act, which states that the obligation to provide notice of termination does not apply to an employee who has been guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer.
4The material facts are not in dispute.
5Mr. George Corn testified for the responding party, Canada-Czech Republic Chamber of Commerce (“the Chamber”). He is a director of the Chamber and was directly involved in dealing with the matters that are the subject of this application. Mr. Corn stated that the applicant was employed as a Tourism Consultant by the Chamber from September 1, 1995 to September 30, 1998 at a salary of $300.00 per week. On or about October 1, 1998, the Chamber entered into an interim arrangement with Kennedy Travel to handle the travel aspects of the Chamber’s responsibilities as exclusive representative in Canada of the “Czech Tourist Authority” (CTA), an agency of the Czech Republic. A permanent arrangement with Kennedy Travel was contingent upon the Chamber renewing its contract with the CTA. As part of the interim arrangement, Kennedy Travel assumed the responsibility of paying the applicant’s salary. Her job responsibilities did not change and she continued to report to Mr. Lubomir Novotny (her supervisor at the Chamber) as well as to Mr. Tom Moos of Kennedy Travel. Prior to this arrangement she reported to Mr. Novotny.
6Mr. Corn stated that the anticipated permanent arrangement between the Chamber and Kennedy Travel never came to fruition. In February, 1999, the Chamber terminated the arrangement with Kennedy Travel and continued to represent the CTA pending a final decision by the CTA as to the appointment of a representative. In October, 1999, Czech Airlines was awarded the exclusive right to represent the CTA in Canada.
7Mr Corn stated that the applicant was terminated by the Chamber on February 12, 1999 because she wrote a letter to each of Chamber’s directors making a series of serious allegations against the Chamber, including allegations of financial impropriety on the part of present and former directors of the Chamber and copied this letter to certain outside parties including the Czech Embassy and Czech Airlines. He testified that Czech Airlines was a competitor for the contract to represent the CTA in Canada. Mr. Corn stated that the Chamber’s Board of Directors viewed the applicant’s actions as being completely inappropriate. In its termination letter, the Chamber informed her that its financial arrangements were none of her business and that it was “particularly disappointing” that she chose to copy her letter to other parties without giving the Chamber an opportunity to respond. The Chamber also terminated its interim arrangement with Kennedy Travel at about the same time. Mr. Corn explained that the arrangement was terminated because the Chamber thought its chance of being awarded the exclusive right to represent the CTA in Canada was significantly diminished by Ms. Prochazka’s letter. In October, 1999, Czech Airlines was awarded the right of exclusive representation.
8Ms. Prochazka testified that she had discovered that the Chamber was receiving funds from the CTA that she considered should have been used by the Chamber for her salary. In her opinion, she was owed about $41,000 in back wages. She stated that she felt “cheated” because she was being paid less than what the Chamber was allegedly receiving from the CTA for her position. She also stated that had been told she would get a raise in salary but none was given to her.
9Ms. Prochazka stated that she raised the matter of her salary with her supervisor, Mr. Novotny but he was not willing to discuss it. She testified that her response was to inform the Chamber’s Board of Directors of her concerns. Thus, on February 10, 1999, she wrote to each Director of the Board stating why she was entitled to back wages in the amount of $41,640.00 and making allegations against the Chamber, including allegations of incorrect invoicing of the CTA by the Chamber. She admitted that, on the same day that she sent this letter to each director, she copied the letter to Czech representatives in Canada, namely the Czech Ambassador, Consul and the director of Czech Airlines. Ms. Prochazka admitted that she had obtained confidential information about the financial arrangement between the CTA and Chamber by visiting the appropriate authorities in Prague.
Decision
10The Board finds that the applicant was guilty of wilful misconduct within the meaning of subsection 57(10) of the Employment Standards Act.
11Ms. Prochazka was a tourism consultant. She agreed to work for $300.00 plus various expenses, and continued to so for over three years. She presented no evidence that the Chamber had ever agreed to give her a raise or to pay her whatever it invoiced the CTA for her position. When she discovered that the Chamber appeared to be getting more money for her position from the CTA than was being passed on to her as salary, she felt cheated. When Mr. Novotny would not discuss the matter with her, she responded by writing to the Chamber’s directors. This, by itself, was not wilful misconduct; an employee is entitled to raise concerns with his or her employer.
12However, in the Board’s view, the act of sending copies of the letter to the Embassy and particularly to Czech Airlines was a deliberate and spiteful attempt to embarrass the Chamber into doing something about her salary. There is no proof that the letter resulted in the Chamber’s loss of its contract with the Czech Tourist Authority. However, the applicant was aware of Czech Airline’s interest in obtaining the contract from the CTA. She was aware that her letter could have some impact. Ms. Prochazka could offer no rational justification for why she involved external parties in her dispute with the Chamber. Ms. Prochazka made serious allegations about mismanagement and financial improprieties that were obviously calculated to harm the Chamber’s relationship with the CTA. Her behaviour constitutes wilful misconduct, whether or not it actually harmed the Chamber. Her improper motive is furthered evidenced by the fact that she gave the Chamber no opportunity to respond to her allegations before she made them public.
13The Chamber was entitled to terminate her employment without notice of termination or termination pay.
14The Board notes that the status of the applicant as an “employee” for the purposes of the Act was in dispute before the Employment Standards Officer, who found that the applicant was an employee. This issue was not in dispute before the Board.
15There is an issue about the identity of Ms. Prochazka’s employer. Was it the Chamber or Kennedy Travel? Mr. Corn stated that Ms. Prochazka was terminated by the Chamber, after it informed Mr. Moos of Kennedy Travel of its intention to do so. At the time of termination, the applicant was being paid by Kennedy Travel. The Board is satisfied, however, that the Chamber was an “employer” of the applicant within the meaning of that term in section 1 of the Act, and was entitled to write the letter of termination. Kennedy Travel and the Chamber were working in close association under their interim arrangement. There is no evidence that Kennedy Travel would have retained Ms. Prochazka if (as happened) the Chamber were unable to continue as the CTA’s exclusive representative in Canada. Finalization of Kennedy Travel’s subcontract with the Chamber was contingent upon the Chamber obtaining this right from the CTA. The applicant continued to report to Mr. Novotny, as well as to Mr. Moos of Kennedy Travel. Indeed, her letter of February 10, 1999 complaining about her salary, etc., was addressed to the Chamber, not Kennedy Travel. In all the circumstances, the Board is satisfied that there was still an employment relationship between the Chamber and the applicant and that the Chamber was still her employer for the purposes of the Act at the time of the termination.
Disposition
16The application is dismissed.
“Anthony Brown”
for the Board