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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

OH&S Month Part 2: Unsafe Work Refusals, Now Narrower for Federal Workers

Posted in Investigations, Labour Relations, Legislative Changes, Occupational Health and Safety, Unions, Workers Compensation
Ryley Mennie

In every jurisdiction in Canada, employees and employers share the responsibility for ensuring a safe and healthy work environment. In British Columbia, employers are required by the Workers Compensation Act [WCA], to ensure the health and safety of their employees and others working at their work place, which includes investigating safety risks and advising employees of same, and taking steps to eliminate or mitigate identified risks. Likewise, employees have obligations to protect their own and others’ health and safety, including reporting fit to work, wearing protective equipment, following safety procedures, and reporting any safety risks.

One aspect of the complementary obligations of employers and employees to ensure a safe work environment is the internal responsibility system regarding unsafe work, which involves the employee’s right to refuse to perform unsafe work and the employer’s obligation to investigate and remedy any unsafe work. In British Columbia, this right is set out in section 3.12 of the Occupational Health and Safety Regulation [Regulation], which states in part:

“A person must not carry out or cause to be carried out any work process or operate or cause to be operated any tool, appliance or equipment if that person has reasonable cause to believe that to do so would create an undue hazard to the health and safety of any person.”

The test for whether a refusal is valid is whether the worker has a reasonable cause to believe the work creates an undue health and safety hazard, with “hazard” being defined as “a thing or condition that may expose a person to a risk of injury or occupational disease”, therefore including “potential” hazards.

Federal employees have a similar right to refuse unsafe work under section 128 of the Canada Labour Code [CLC] which, like the Regulation, involves specific procedures that must be followed when an employee refuses to perform work that is claimed to be unsafe. At present, the procedures under provincial and federal legislation are similar, and generally include:

  1. An employee must immediately repeat his or her refusal to perform unsafe work to his or her supervisor or employer.
  2. The supervisor/employer must immediately investigate and either promptly remedy the unsafe condition or inform the employee that the refusal is invalid.
  3. If the employee continues to refuse, the supervisor or employer must investigate in the presence of the employee and either a member of the Joint Health and Safety Committee or Worker Representative, an employee selected by the trade union, or if no committee or union, another reasonably available employee.
  4. If the refusal is still not resolved, the supervisor/employer and employee must notify a health and safety officer, who must immediately investigate.

Once an employee has excercised his or her right to refuse to perform unsafe work, both the WCA and Regulation and the CLC prohibit an employer from taking any discriminatory or retaliatory action against the employee.

In response to concerns about unjustified work refusals under the CLC, the federal government introduced amendments to the CLC in its omnibus budget Bill C-4 last year, narrowing the circumstances in which a federal employee may refuse to conduct unsafe work and amending the investigation process to enhance the internal responsibility of employers and employees to ensure a safe working environment. Currently, the definition of “danger” under the CLC, like the definition of “hazard” in British Columbia, is relatively expansive:

“any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system.”

As of October 31, 2014, “danger” will be defined more narrowly as:

“any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.”

The CLC amendments also include the elimination of “health and safety officers” (to be replaced with the Minister or its appointees) and changes to the procedures applicable to investigations of unsafe work refusals, including:

  • upon being notified by an employee of a refusal to perform unsafe work, an employer is expressly required to investigate and prepare a written report;
  • if the work refusal continues after the employer’s initial investigation, employer and employee representatives must investigate collaboratively and prepare a further written investigation report;
  • the employer must provide all written investigation reports to the Minister if the employee continues to refuse to perform work claimed to be unsafe;
  • the Minister may refuse to further investigate a claim of unsafe work following the workplace investigations; and
  • an employee may not continue to refuse to perform work once the circumstances have been investigated by the employer and employee representatives and the Minister has either agreed that no danger exists, or has refused to further investigate the matter.

In a Consultation Paper published by the Department of Finance in connection with Bill C-4, the federal government stated that the amendments arose in large part because “over 80% of refusals to work in the last 10 years – from 2003 to 2013 – have been determined to be situations of no danger, even after appeals.”

It is interesting to note that the new definition of “danger” under the CLC will be similar to its previous definition, prior to 2000, at which point the CLC was amended to include the current concepts of “potential dangers”.

Although objections have been voiced by workers’ rights groups regarding the amendments to the CLC, in light of the statistics regarding valid unsafe work refusals and the significant costs and work disruptions associated with investigating claims of unsafe work, it is no surprise that the federal government has taken action to address these concerns. Although BC legislation also addresses potential hazards, we are not aware of any calls for similar changes to the legislation in British Columbia.

We’ll be sure to keep you updated of any further developments in the federal and provincial spheres.

Introducing Occupational Health & Safety Month!

Posted in Occupational Health and Safety, Workers Compensation, Workplace Training, WorkSafeBC
Rosalie Cress

This month, we introduce a new series focusing on occupational health and safety (“OH&S”) issues to help employers ensure health and safety in the workplace and avoid penalties under the Workers’ Compensation Act and Occupational Health and Safety Regulation (the “Regulation”).

First, do you have a written Occupational Health & Safety program? The Regulation requires that all employers with a workforce of 50 or more workers, or with 20 or more workers in a workplace with a high or moderate risk of injury must have a written OH&S Program.  (You can find out your workplace’s assigned hazard rating here.)  When investigating a workplace safety incident, one of the primary considerations WorkSafeBC takes into account when deciding whether to levy a penalty against an employer is whether the employer has an OH&S Program that conforms to all the requirements of the Regulation.

OH&S Programs must be generally designed to prevent injuries and occupational diseases, and must include the following provisions:

  • a statement of the employer’s aims and the responsibilities of each of the employer, supervisor and workers;
  • regular inspections of the workplace, equipment, and work practices at appropriate intervals, so that hazardous conditions are promptly identified and corrected;
  • written instructions on safe work practices to supplement the Regulation which are available for reference by all workers;
  • periodic management meetings to review health and safety activities, incidents and trends, and to determine necessary courses of action;
  • prompt investigation of OH&S incidents to determine how to prevent their recurrence;
  • maintenance of records and statistics, including inspection reports and incident investigation reports, and how this information will be provided to the Joint Health and Safety Committee or Health and Safety representative (as applicable); and
  • instruction and supervision of workers on how to perform their work safely.

For workforces with less than 50 workers (or less than 20 workers in a moderate or high risk of workplace), employers are not required to have a written OH&S Program with the above provisions. Instead, employers must have a less formal program in place, involving monthly meetings with workers to discuss health and safety matters and correct unsafe conditions, and keep records of the meetings.

To make sure that your business is fully compliant with the Act and Regulation, we recommend that you regularly review your OH&S Program, at least annually, and ensure it is up-to-date whenever changes are made.

In the coming weeks, we will post on other key OH&S issues, including bullying and harassment, young and new worker orientations, and employees working alone. Stay tuned!

How Not To Fill A Labour Shortage

New Challenges for Employers under the Temporary Foreign Worker Program

Posted in Discrimination, Human Capital, Immigration, Recruiting, Temporary Foreign Worker Program
Christopher McHardy

Since we last posted about the Temporary Foreign Worker Program (“TWFP”) here and here, the federal government has, in the face of political pressure, introduced significant changes to the program. Employers now face greater challenges and cost in addressing labour shortages through the use of temporary foreign workers (“TFWs”).

First, employers are now subject to a cap on the proportion of their workforce which can be filled by low wage TFWs. A “low wage” job is any job which pays below the provincial or territorial median wage. Employers with ten or more employees can employ only 10% of their workforce  as low wage TFWs. Those employers which currently employ more than 10% of their workforce as low wage TFWs are capped at 30% or their current level (whichever is lower); this cap will be reduced to 20% beginning July 1, 2015, and further reduced to 10% on July 1, 2016.

Second, employers face a more rigorous Labour Market Impact Assessment (“LMIA”) process to hire TFWs, in place of the former Labour Market Opinion (“LMO”) process. Employers must now provide more information about the number of Canadians that applied for the required position, the number of Canadians interviewed, and explain why those Canadians were not selected for the position.

Third, certain applications to hire TFWs will not be processed at all. Employers will not have their applications processed if they are 1) in an economic region with an unemployment rate of 6% or more; and 2) either operating in the Accommodation and Food Service or Retail Trade industries or applying to hire a TFW in the following occupations:

  • Food Counter Attendant, Kitchen Helpers and related occupations (NOC 6641);
  • Light Duty Cleaners (NOC 6661);
  • Cashiers (NOC 6611);
  • Grocery Clerks and Store Shelf Stockers (NOC 6622);
  • Construction Trades Helpers and Labourers (NOC 7611;
  • Landscaping and Grounds Maintenance Labourers (NOC 8612);
  • Other Attendants in Accommodation and Travel (NOC 6672);
  • Janitors, Caretakers and Building Superintendents (NOC 6663)
  • Specialized Cleaners (NOC 6662); and
  • Security Guards and related occupations (NOC 6651).

All pending applications under these categories have or will be cancelled, and the application fees refunded.

Fourth, employers seeking to hire a TFW for a job which pays more than the provincial or territorial median wage (a “high wage” job) must, with few exceptions, submit a Transition Plan to show their efforts to hire Canadians or permanent residents for the job. These efforts may include paying higher wages for the position, investing in training Canadians and permanent residents, more active recruitment efforts (including engaging organizations to identify and hire underrepresented groups such as aboriginals and youth), or supporting the TFW’s permanent residency.

Finally, all employers face tougher enforcement, and higher fees and fines under the TFWP.  The LMIA application fee has increased from $275 to $1,000 per worker. ESDC has also promised that one in four employers using the TFWP will be inspected each year for compliance with the conditions of their LMIA letters and, if applicable, the Transition Plans. ESDC may now impose a fine of up to $100,000 for violations.

There is one bright spot to the changes to the TFWP. For employers who need TFWs in skilled trades, highly paid jobs (top 10% wages) or for very short projects (120 days or less), ESDC is aiming to process LMIAs within ten business days.

As a result of these changes, it will undoubtedly be more difficult for employers to use TFWs to meet labour shortages. Employers can minimize their risk of fines and challenges under the TFWP by taking the following steps:

  1. Make your best case for a TFW, including applying for shorter or limited duration projects (if possible) and keeping good records of your efforts to recruit and hire Canadians for the position;
  2. Take advantage of arranged permanent employment programs for foreign nationals you wish to employ on a longer term basis, such as Provincial Nominee Programs;
  3. Keep all documents necessary to show compliance with any LMIA and, if applicable, Transition Plan, including time sheets, pay and benefit stubs, and ongoing recruitment, training and other efforts to identify and hire Canadians;
  4. Contact legal counsel if you are notified about an inspection by ESDC or need to make any changes to a TFW’s employment.

We will keep you posted on any further changes to the TFWP.

Rare Costs Award at BC Human Rights Tribunal for Improper Conduct

Posted in Discrimination, Human Rights, Legislative Changes, Litigation, Termination
Ryley Mennie

Despite an employer’s legitimate basis for terminating an employee’s employment, it will often find itself a respondent to a human rights complaint following termination. The costs for employers to defend a human rights complaint can be very high and, unlike in the courts, the B.C. Human Rights Tribunal does not have jurisdiction to order unsuccessful parties to pay the successful party’s legal fees. However, in exceptional circumstances, the Tribunal has a limited jurisdiction under the Human Rights Code to make punitive costs awards for “improper conduct” that impacts the integrity of the Tribunal’s processes.

The Tribunal found such circumstances to exist in the case of Ma v. Dr. Iain G. M. Cleator and another. Kim Ma worked in the respondent doctor’s clinic as an office assistant for a number of years. She eventually took an extended maternity leave and, when she returned to the workplace, found that a significant number of processes and operations had changed in her absence. Ms. Ma resisted the changes and was in immediate conflict with the new office manager. Despite efforts to make it work, Dr. Cleator found the employment relationship was unworkable and terminated Ms. Ma’s employment, providing her pay in lieu of notice, approximately one month after her return.

Ms. Ma filed a complaint with the Tribunal alleging that Dr. Cleator had discriminated against her on the basis of sex (pregnancy), family status and mental disability. After ten days of hearing, the Tribunal concluded that the entirety of Ms. Ma’s complaint should be dismissed, finding that Ms. Ma had purposely fabricated the basis for her complaint, lied under oath, altered or created false evidence and knowingly misled the Tribunal.

Based on its limited jurisdiction, the Tribunal took the rare step of making a punitive order for $5,000 in costs against Ms. Ma. Although the award is much less than what respondents usually expend to defend themselves against a human rights complaint, it is at the highest level in light of previous case law.

We often advise employers of the unfortunate reality that costs are not available in human rights tribunals in any jurisdiction in Canada, even when an employer is completely successful and a complaint is found to be completely without merit. Many calls have been made for reform of provincial human rights legislation - not just in British Columbia. Our colleagues in Ontario previously posted on a private member’s bill in Ontario that sought to amend human rights legislation to provide the Ontario Human Rights Tribunal with jurisdiction to order costs. Although Ontario Bill 147 passed first reading in December 2013, it has since died following the dissolution of Ontario’s legislative assembly for a provincial election.

While we are not holding our breath for amendments to British Columbia’s Code permitting the Tribunal to award costs against unsuccessful parties in the foreseeable future, the introduction of Bill 147 in Ontario provides some encouragement that legislatures are at least aware of the challenges faced by respondents to human rights complaints and that some politicians are willing to takes steps to address them.

When Does an Employer Own Copyright in a Photograph Made by an Employee?

Posted in Copyright, Intellectual Property
Donovan Plomp

Our colleague, Keith Rose, has posted here about the recent British Columbia Supreme Court decision in Mejia v. LaSalle College International Vancouver Inc., 2014 BCSC 1559. The case is a reminder to employers about the importance of explicitly and comprehensively addressing intellectual property rights in employment agreements.

Teachers’ Strike: What does it mean for your workplace?

Posted in Accommodation, Discrimination, Employment Standards, Family Status, Human Rights, Labour Relations, Unions, Wage and Hours
Christopher McHardy

While talks continue, there is no immediate end in sight for the ongoing teachers’ strike. For employees with school-age children, this may mean facing a child care gap starting next week. As an employer, what are your legal obligations and what can you do to make sure work continues while school’s out?

The Legal Framework

First, the Employment Standards Act provides all employees in the province with up to five (5) unpaid days of family responsibility leave each year for the care, health and education of a child in an employee’s care.  Employers do not have the discretion to deny the leave, but can and should ask for sufficient information to confirm the employee’s entitlement to it, such as the identity of the person for whom they are caring, the relationship and the reason for the leave.  That said, employers should be sensitive when challenging employees’ reasons, particularly in the current circumstances.

Second, the Human Rights Code prohibits discrimination in employment on the basis of family status. While the extent to which child care obligations are protected is still in flux (previously discussed here and here), employers should take a flexible but informed approach to employees’ requests for accommodation due to child care obligations. We recommend that employers ask for sufficient information to determine the nature of the employee’s child care needs and the extent to which they are affected by his or her employment obligations. For example, an employee who is able to arrange adequate child care through family, friends, neighbours or public or private programs in order to attend work should be expected to do so before requesting any accommodations. This is particularly true since the government has offered to pay families $40 per day for each child under 13 years old to cover additional child care expenses. However, if an employee has no alternate child care options, then employers should consider a reasonable accommodation.  If there is no workable accommodation that will suit the employer, the employer may provide the employee time off without pay.

Accommodating a Child Care ‘Gap’

The nature and extent of any accommodation will depend on the employer’s requirements and policies, and the employee’s needs, but accommodation may include:

  • Working from home or tele-commuting;
  • Providing or facilitating group child care at or close to the workplace (employers should get advice before initiating such an option);
  • Allowing employees to bring their older children to work for some or all of the day;
  • Flexible or reduced work hours;
  • Using vacation or other paid personal leave (if provided under the employment contract or collective agreement); and/or
  • Unpaid leave.

Finally, it is important to ensure that employees who work off-site continue to accurately record their hours and are reminded not to work any unauthorized overtime.

We will continue to keep you updated on any major developments with respect to the teachers’ strike and its impacts on other employers.

Reassignment of CN Employee a Constructive Dismissal

Posted in Constructive Dismissal, Damages, Litigation, Termination
Rosalie Cress

A BC employee has successfully asserted a claim for constructive dismissal after being reassigned to a new position. Younger v. Canadian National Railway Company is a good reminder for employers that the courts may find there has been a constructive dismissal where an employee has been reassigned to a new position involving fewer responsibilities and a reduction in pay.

Younger had been a railway employee since graduating high school in 1973. He started working as a labourer and eventually advanced to a management position at CN. In 2004, CN assigned Younger to the position of Assistant Superintendent Mechanical (“ASM”), which required that he supervise the operations of three major and three minor facilities. The position required Younger to be on call 24/7 and to be responsible for the safety and productivity of approximately 100 employees. In 2005, he was reassigned by CN to a position which only required that he supervise one facility and work a maximum of 40 hours a week. In the new position, Younger would only be responsible for 10 employees and would fall 2 positions on CN’s 12 position pay scale. As part of the reassignment, CN agreed to pay Younger his current salary for a year; at the end of that period, his wage would be reduced to the new position’s lower pay scale.

Younger declined the position transfer, alleging it was demotion, and refused to report to work after the reassignment. Younger found comparable employment five months later.

CN argued that it was entitled to reassign Younger because he was still in an “implied probation period” following Younger’s initial 2004 promotion to the ASM position. The court accepted that there may be cases in which there is an implied probation period following an employee’s promotion, during which time an employer may be able to return the employee to his or her former position without being found to have fundamentally breached the contract. However, this was not one of those cases. At the time of Younger’s 2004 assignment to the ASM position he had been working in a comparable position for about 5 years. As such, the ASM position could not be considered a “promotion” and CN’s reassignment to a lower position could not be considered a “return to a former position”.

The court agreed with Younger that CN’s reassignment was not a lateral transfer but a demotion. This demotion amounted to a fundamental breach of Younger’s employment contract as the differences between the positions “amounted to substantial changes to the employment contract”.

This case stands as a reminder that employers must take care when reassigning their employees and ensure that transfers which are done without an employee’s consent or without reasonable notice are of a lateral nature rather than a demotion. While we have previously discussed here how the Courts will provide some deference to employers, it does not extend to situations where the employee’s new position is a substantial demotion.

Employers may also want to consider making promotions subject to an express probationary period, during which the employee can be returned to his/her previous or a comparable position without a fundamental breach of contract.

CN has applied to appeal the decision.

Have Your Say on BC’s Private Sector Privacy Legislation

Special Committee to Review the Personal Information Protection Act

Posted in Privacy
Rosalie Cress

Since it came into force in 2004, British Columbia’s private sector privacy legislation, the Personal Information Protection Act, has had a significant impact on the way British Columbia employers collect, use and disclose the personal information of their employees and others.  The last review of the Act took place in 2008. A Special Committee is currently undertaking a review of the Act, including public consultation. If you or your organization are interested in participating in the consultation, you can do so by:

  • Attending a public hearing on September 8 or 9, 2014; or
  • Making written submissions to the Committee on or before September 19, 2014.

You can find more information about the review and how to participate here.

Update on Overtime Class Actions in Canada

Ontario Court approves unique settlement of overtime class action

Posted in Employment Standards, Litigation, Wage and Hours
Christopher McHardy

Canadian employers have been watching a series of class action claims, with employees claiming hundreds of millions of dollars in unpaid overtime, since 2007. While overtime class action claims are still not possible in British Columbia (for the reasons discussed here), claims can balloon in other provinces when a representative plaintiff claims unpaid overtime for themselves and on behalf of colleagues.

On August 12, 2014, the Ontario Superior Court of Justice approved the settlement of one of these overtime class actions, Fulawka v. The Bank of Nova Scotia.  Our colleagues in Calgary have posted about this recent development here.

Background

Cindy Fulawka (Fulawka) was employed at various Bank of Nova Scotia (BNS) branches and held various positions such as Personal Banking Officer and Account Manager. In 2007, Fulawka, acting as a representative plaintiff, claimed $250 million in general damages and a further $100 million in punitive damages on behalf of approximately 15,000 individuals.

On February 19, 2010, the class action was certified by the Ontario Superior Court. BNS appealed the certification to both the Divisional Court and the Court of Appeal of Ontario but was largely unsuccessful. BNS sought leave to appeal to the Supreme Court of Canada but was denied. On August 12, 2014, Justice Belobaba approved the settlement of the action from the bench but has yet to issue a written decision.

Proposed Settlement

BNS has agreed to pay employees for overtime owed to them but the exact settlement value is uncertain. However, Fulawka’s counsel has predicted that class members will receive approximately $95 million.

To assess unpaid overtime, BNS will participate in an informal but binding procedure in which employees can claim overtime without any documentation confirming actual hours worked. If BNS and the employee are unable to agree on the amount owed, an arbitrator will make a final ruling and is empowered to reasonably estimate unpaid overtime.

Lessons for Employers

This case highlights the liability that large employers who operate in other provinces may face if overtime is systematically underpaid or withheld. To avoid exposure for unpaid overtime in any province, employers should take the following steps:

  • Make sure your employees are properly classified. For example, ensure that any ‘exempt’ management or other employees who are not paid overtime are truly exempt from overtime under applicable legislation.
  • Consider methods to control overtime costs such as averaging agreements, compressed workweeks, or time off in lieu of overtime pay, as permitted by applicable legislation.
  • Keep accurate records of hours worked. Without accurate records of hours worked, it is much more difficult and costly to defend overtime claims.
  • Enforce policies with respect to overtime and record-keeping. If employees work unauthorized overtime or do not record their hours, respond with appropriate discipline and/or increased supervision.

BC Supreme Court Declines to Defer to Baptist Church

Churches and other employers must be cautious when relying on internal procedures to dismiss individuals

Posted in Litigation, Termination, Wrongful Dismissal
Ryley MennieWill Skinner

The B.C. Supreme Court recently decided an application to hear a pastor’s wrongful dismissal claim, which may impact employers both inside and outside of ecclesiastical contexts.

In Kong v Vancouver Chinese Baptist Church, the Vancouver Chinese Baptist Church (“VCBC”) applied to have a claim for wrongful dismissal filed by its former Senior Pastor, the Reverend Alfred Yiu Chuen Kong (“Rev. Kong”), dismissed. Rev. Kong filed the underlying claim after he was dismissed by the VCBC following a long series of VCBC committee meetings and discussions to resolve internal strife involving Rev. Kong.

The VCBC applied to court to have Rev. Kong’s claim dismissed on the following basis:

[32]       The VCBC submits that a church’s removal of its spiritual leader is intrinsically ecclesiastical in nature.  It follows, the church argues, that this is an ecclesiastical issue over which the court has no jurisdiction other than to ensure that the church has proceeded in accordance with the principles of natural justice.

 VCBC relied on a decision involving the Catholic Church from the Ontario Court of Appeal, which held:

[18]      A second exception [to the jurisdiction of courts to hear wrongful dismissal claims] is where the rules of a self-governing organization, especially a religious organization, provide an internal dispute resolution process.  A person who voluntarily chooses to be a member of a self-governing organization and who has been aggrieved by a decision of that organization must seek redress in the internal procedures of the organization: see Levitts Kosher Foods v. Levin(1999), 45 O.R. (3d) 486 (S.C.).

The B.C. Supreme Court denied the VCBC’s application, holding that the question of whether internal church procedures or common law applies to the dispute is governed by the facts giving rise to the dispute. Although the court did not cite the Supreme Court of Canada’s recent decision in McCormick v Fasken Martineau DuMoulin LLP, which we commented on here, it determined that the facts giving rise to Rev. Kong’s wrongful dismissal claim were, in their nature, that of ”employment”. Because the VCBC had the power to select, control, and dismiss Rev. Kong as Senior Pastor, the court found he was a common law employee, notwithstanding he was a “a clergyman claiming against a church”.

Although this ruling concerns religious organizations in particular, it is another decision after McCormick in which the court ignores appearances and internal structures and opts to decide for itself whether entities are in a common law employment relationship. In light of recent judicial decisions in this vein, employers that have in the past relied on internal dispute resolution mechanisms with respect to “employees” should pause and consider potentially unforeseen legal consequences prior to making any substantial changes to the roles, terms, remuneration or obligations of individuals they are engaged with.

We will keep a close eye on Rev. Kong’s wrongful dismissal claim and keep you posted on developments.