Migratory worker can have case heard here

Everton McLean
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Justice Man suing former Alberta employer won't have to travel to pursue case: lawyer

A Corner Brook man has won the right to have his suit against a major Alberta oil drilling company heard in his hometown after the company applied for the case to be moved to Alberta or else put on hold indefinitely.

Gordon Chris Brake is suing his former employer, Phelps Drilling Co., for firing him December 2007, after eight years on the job. Brake has alleged Phelps fired him when he was unable to return to work within two days notice during Christmas that year.

Jim Bennett

A Corner Brook man has won the right to have his suit against a major Alberta oil drilling company heard in his hometown after the company applied for the case to be moved to Alberta or else put on hold indefinitely.

Gordon Chris Brake is suing his former employer, Phelps Drilling Co., for firing him December 2007, after eight years on the job. Brake has alleged Phelps fired him when he was unable to return to work within two days notice during Christmas that year.

He said he had stayed at the rig longer than expected that year, and before he left he told his rig manager he would not be able to come back from Newfoundland until Jan. 15.

Brake told The Telegram in May that when he got the call to come back to work early and said he couldn't do it, he was told by a manager "If you can't make it back, you're fired."

After that he was let go, although he alleges the company claimed on his record of employment that he had resigned, leaving him with no employment insurance benefits.

When Brake filed his claim in Newfoundland and Labrador, Phelps followed with the application to have the hearings held instead in Alberta or else have them stayed.

In reviewing the application, Justice Gillian Butler said Phelps argued Brake had no right to file the suit in this province because the employment contract wasn't made here.

What's more, the company's representative rejected a provision under Newfoundland and Labrador law that allows for a hearing here as long as there is a "real and substantial connection" to the province, saying no such connection exists.

While Butler agreed there was not enough evidence to show the contract was made in Newfoundland and Labrador, she said the saving clause regarding the substantial connection to this province was relevant on several counts.

She said that by allegedly claiming Brake resigned, Phelps may have caused damages to the former worker by making it difficult for him to get employment insurance benefits.

As well, she noted the alleged breach happened over the telephone while Brake was in Newfoundland, another connection to the province.

Butler also said that, while Phelps would face additional expense by having the trial in Corner Brook, Brake would be more significantly impacted by having to travel to Alberta for the trial, retain a lawyer there, in addition to the cost of sending witnesses to the province.

"There would be considerable unfairness to (Brake) in not assuming jurisdiction," she said.

As well, while Butler noted that Alberta does not accept the "real and substantial connection" rule provincially, she said the province's courts are obliged to follow that test because it was made in a Supreme Court of Canada decision.

Brake's lawyer, Jim Bennett, said the decision is an important one for migratory workers.

"It means that anybody from this province who is working in another jurisdiction, Alberta but certainly other jurisdictions, if they're mistreated, wrongfully fired or have a beef with their employer and they're working from here, our courts will accept jurisdiction," said Bennett.

"It's really important because litigation generally is very expensive."

He said the added cost of travelling to Alberta to hear the case would have made it financially straining, even impossible, for Brake.

"If you can do it here, it certainly evens the balance a little bit and puts you closer to an even footing," said Bennett.

Bennett said he feels the facts of the case make the decision reasonable, especially considering Brake's T-4 forms and residence were being sent to Newfoundland.

"They knew he was here," he said.

Bennett said he's still waiting to hear whether Phelps will go forward with an appeal before wading into the discovery and possibly a trial.

emclean@thetelegram.com

Organizations: Phelps Drilling Co., The Telegram, Supreme Court of Canada

Geographic location: Alberta, Newfoundland and Labrador, Corner Brook

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Comments

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Recent comments

  • J
    July 02, 2010 - 13:30

    I do believe getting fired for saying you will not show up for work is justifiable.

    Are you trying to tell me that not showing up for work is acceptable? No wonder the rest of Canada questions our work ethic when people are bleating this ridiculous stuff out.

    Number of years of service is irrevelant when just cause exists and is usually only for calculating any benefits such as a final pay-out and such.

  • Nasty
    July 02, 2010 - 13:28

    I do not think Alberta employers will be looking to take people from eastern Canada back anytime soon. Too many abused the LOA and bonus plans, and since they can import labour from China and Mexico for a fraction of the wages why would they even consider the head aches with eastern labour anymore?

    Danny will give everyone a job in the offshore here remember! Same wages and stay at home is what he talked about when he was in Fort McMurray. Well bring it on Danny boy, or was that just a pack of lies to make you feel good and gain another term?

  • greg
    July 02, 2010 - 13:26

    The location of the court action is not the issue here. Its the fact that this guys seems to have been discharged without cause.....6 months ago and still no hearing in sight. Workers need unions not lawyers. This issue would be a routine arbitration for any union worth its salt. Quicker and no cost to the member.

  • J
    July 02, 2010 - 13:24

    Yeah, I wish I could tell my employer I won't be back for a few weeks.

    Your contract probably stipulated you were on call 24/7.

  • A.D
    July 02, 2010 - 13:23

    I myself have never had to work in Alberta, but I have had several friends do so. He stated that he worked extra long that year. I have heard time and time again that employers force they're staff to work extreme hours and don't let them off to see family. Has anyone here worked 6 to 8 weeks straight with no time off. Well I know of people who do and its only because they want to keep their employers happy. This individual obviously said no, he needed his time off and paid the price.
    If a person has time off coming to them they should have the right to get it without punishment.

  • Gerry
    July 02, 2010 - 13:22

    This is a very good well taught out decision and a lot of those people in management will now be held accountable.very good for the workers also who are very often treated like garbage, this guy must be a good worker as he was working there for 8 years.

  • s
    July 02, 2010 - 13:20

    I fully support Brake in this. He stayed at the rig longer than expected which on many rigs here in AB is an unwritten rule. His employer never compensated him for those lost days off but expected him to come back earlier than he told them he would? This would be unacceptable in almost every other industry but for some reason the Oil and Gas companies here expect to get away with this type of mistreatment of their employees. Kudos to Mr Brake for standing up for his rights.

  • Billy
    July 02, 2010 - 13:19

    while company execs and ceos are enjoying lengthy holidays with their families an exotic southern countries basquing in the sun, workers are expected to forfeit any idea that they will ever see their families again so these greaseballs can keep making $150,000 to $1,500,000 a year salaries.

  • Ed
    July 02, 2010 - 13:14

    This is a good decision and one which will surely be noticed by Alberta employers.

  • Anne Marie
    July 02, 2010 - 13:13

    J from Nfld. wrote: Yeah, I wish I could tell my employer I won't be back for a few weeks. . Well, J if an employee has given 8 years of service to an employer, it is obvious that you should not be able to fire him over the phone. If the employee had just said he was sick and could not return, then the employer would not be able to do a thing. But because the employee was truthful, the employer thinks he can fire for no good reason. Unbelievable!

  • G
    July 02, 2010 - 13:12

    He was asked to come back to work in Alberta with 2 days notice! Have you tried to get an airline ticket into or out of Newfoundland in December on 2 days notice? It is not an easy task and at times impossible. The employer knew he was home in Newfoundland and there are laws regarding time off/vacation and employers demands for you to return.

  • Paul
    July 02, 2010 - 13:10

    I worked on the Hibernia platform for 6 years. I was amazed at all the Newfoundlanders who would not show up at the heliport the week before christmas to go offshore. I was even more amazed that they didn't get fired. Welcome to the real oilfield.

  • J
    July 01, 2010 - 20:18

    I do believe getting fired for saying you will not show up for work is justifiable.

    Are you trying to tell me that not showing up for work is acceptable? No wonder the rest of Canada questions our work ethic when people are bleating this ridiculous stuff out.

    Number of years of service is irrevelant when just cause exists and is usually only for calculating any benefits such as a final pay-out and such.

  • Nasty
    July 01, 2010 - 20:15

    I do not think Alberta employers will be looking to take people from eastern Canada back anytime soon. Too many abused the LOA and bonus plans, and since they can import labour from China and Mexico for a fraction of the wages why would they even consider the head aches with eastern labour anymore?

    Danny will give everyone a job in the offshore here remember! Same wages and stay at home is what he talked about when he was in Fort McMurray. Well bring it on Danny boy, or was that just a pack of lies to make you feel good and gain another term?

  • greg
    July 01, 2010 - 20:13

    The location of the court action is not the issue here. Its the fact that this guys seems to have been discharged without cause.....6 months ago and still no hearing in sight. Workers need unions not lawyers. This issue would be a routine arbitration for any union worth its salt. Quicker and no cost to the member.

  • J
    July 01, 2010 - 20:10

    Yeah, I wish I could tell my employer I won't be back for a few weeks.

    Your contract probably stipulated you were on call 24/7.

  • A.D
    July 01, 2010 - 20:09

    I myself have never had to work in Alberta, but I have had several friends do so. He stated that he worked extra long that year. I have heard time and time again that employers force they're staff to work extreme hours and don't let them off to see family. Has anyone here worked 6 to 8 weeks straight with no time off. Well I know of people who do and its only because they want to keep their employers happy. This individual obviously said no, he needed his time off and paid the price.
    If a person has time off coming to them they should have the right to get it without punishment.

  • Gerry
    July 01, 2010 - 20:07

    This is a very good well taught out decision and a lot of those people in management will now be held accountable.very good for the workers also who are very often treated like garbage, this guy must be a good worker as he was working there for 8 years.

  • s
    July 01, 2010 - 20:03

    I fully support Brake in this. He stayed at the rig longer than expected which on many rigs here in AB is an unwritten rule. His employer never compensated him for those lost days off but expected him to come back earlier than he told them he would? This would be unacceptable in almost every other industry but for some reason the Oil and Gas companies here expect to get away with this type of mistreatment of their employees. Kudos to Mr Brake for standing up for his rights.

  • Billy
    July 01, 2010 - 20:01

    while company execs and ceos are enjoying lengthy holidays with their families an exotic southern countries basquing in the sun, workers are expected to forfeit any idea that they will ever see their families again so these greaseballs can keep making $150,000 to $1,500,000 a year salaries.

  • Ed
    July 01, 2010 - 19:53

    This is a good decision and one which will surely be noticed by Alberta employers.

  • Anne Marie
    July 01, 2010 - 19:50

    J from Nfld. wrote: Yeah, I wish I could tell my employer I won't be back for a few weeks. . Well, J if an employee has given 8 years of service to an employer, it is obvious that you should not be able to fire him over the phone. If the employee had just said he was sick and could not return, then the employer would not be able to do a thing. But because the employee was truthful, the employer thinks he can fire for no good reason. Unbelievable!

  • G
    July 01, 2010 - 19:49

    He was asked to come back to work in Alberta with 2 days notice! Have you tried to get an airline ticket into or out of Newfoundland in December on 2 days notice? It is not an easy task and at times impossible. The employer knew he was home in Newfoundland and there are laws regarding time off/vacation and employers demands for you to return.

  • Paul
    July 01, 2010 - 19:46

    I worked on the Hibernia platform for 6 years. I was amazed at all the Newfoundlanders who would not show up at the heliport the week before christmas to go offshore. I was even more amazed that they didn't get fired. Welcome to the real oilfield.