the circumstances,

LANDRY, J.

[1] The Plaintiff claims damages for wrongful dismissal.

[2] The Defendant is in the business of cleaning storm and sanitary sewers and conducting visual or video inspections of municipal and other sewer systems. Its head office is in Saint John.

[3] The Plaintiff, age 44, started working for the Defendant in Moncton in May, 1997 as a pumping or vacuum truck operator. In March, 2001 the Plaintiff was promoted and became Manager of the newly opened Nova Scotia division of the Defendant company, a position he held until he was dismissed on November 6, 2001.

[4] In Moncton, the Plaintiff earned $12.00 per hour, that is approximately $25,000.00 per year.

[5] As manager in Nova Scotia, his salary was $34,000.00 per year plus a bonus of $5,000.00 or more as well as use of the company truck. He also received a lump sum payment of $3,000.00 to cover legal and moving costs.

[6] In March, 2001, the Defendant was the successful bidder and obtained a sizeable Halifax Regional Municipality contract for material testing and inspection and decided to open a branch office in Lower Sackville to service that contract and other works in Nova Scotia. The Plaintiff was hired as Manager for Nova Scotia. He in turn hired 4 or 5 employees and began managing the operations in Nova Scotia. Part of a building was rented in Lower Sackville for the office and equipment.

[7] The Plaintiff worked almost four years in Moncton as a pumping or vacuum truck operator before he was offered the Nova Scotia Manager position. By way of education, he has completed high school and one year of university.

[8] On October 27, 1999 in an evaluation made by the Moncton Manager, the Plaintiff received very high marks and merited the characterization of “distinguished” under all of the aspects of the evaluation. The evaluation form concludes as follows: “hard working, needs little or no supervision, quick learner, very polite to customers, very good with details and paperwork, concerned about equipment, neat, clean, concerned about company image, dependable.”

[9] The Plaintiff had to follow safety courses to obtain the certificates required to tender for the Halifax Regional Municipality contract. The Plaintiff also had to deal with numerous Compliance Orders issued by the Occupational Health and Safety Division of the Nova Scotia Department of Labour.

[10] In the summer of 2001, the Defendant received complaints from managers of other areas in the operation regarding their difficulty in working with the Plaintiff and on August 23, 2001, there was an incident involving the company accountant who complained that the Plaintiff spoke to her in an unprofessional manner.

[11] On September 18, 2001, the General Manager, Patrick Desmond, met with the Plaintiff to discuss the various complaints regarding his relation with other employees. The meeting went well. The Plaintiff indicated he would try and do better.

[12] The Plaintiff reduced his communications with the other employees who had complained to a bare minimum, but continued to effectively manage the company’s Nova Scotia division. The division was doing good business.

[13] Concerning the problem with the accountant, one can understand the Plaintiff’s frustration when on three occasions his employee’s paycheques arrived late and the Plaintiff had to temporarily advance some of his own money to one of the employees.

[14] The other incidents discussed on September 18, 2001 were not very serious either. One concerned the Plaintiff not wanting the Sales Manager to deal with the client in Yarmouth with whom the Plaintiff had a good relation. The Plaintiff feared that it might cause confusion. One item discussed was the Moncton Manager’s complaint regarding the work assigned to him when he went to help out in Halifax, a problem which he could easily have discussed with the Plaintiff who used to be under his charge in Moncton and for whom he prepared the very laudatory evaluation referred to above.

[15] The incident that caused the Plaintiff’s dismissal for cause began on Wednesday, October 10, 2001. In the morning, the Plaintiff asked Danny MacKenzie and Stewart Martin to go flush the storm sewer in a new subdivision where there was complaint of a smell probably caused by the sanitary sewer faultily dumping into the storm sewer. The two employees spent the whole morning at the subdivision but did not flush the storm sewer as requested. They apparently did nothing that morning. The Plaintiff and MacKenzie exchanged words. MacKenzie then did the flushing but told Martin after only 5 ½ hour of work that day that he was quitting his job as he could not take it anymore. MacKenzie did not tell the Plaintiff directly that he was quitting, but added that the Plaintiff would eventually figure out that he had quit. Martin however that afternoon told the Plaintiff that MacKenzie had quit.

[16] The Plaintiff on the weekend of October 13 and 14, 2001 stopped at MacKenzie’s residence twice on his way to and from Moncton to check as to why he was not at work but MacKenzie was not at home.

[17] MacKenzie was one of the most experienced employee of the Plaintiff.

[18] The reason the Defendant dismissed the Plaintiff for cause on November 6, 2001 is because of the allegation that he lied by hiding from higher management in Saint John the fact that MacKenzie had quit his job on October 10, 2001.

[19] On October 11, 2001, the day after MacKenzie quit his employ, Brad Melanson, the head office Operations Manager happened to be at the Nova Scotia branch office in Lower Sackville and asked the Plaintiff where MacKenzie was. The Plaintiff answered that he had taken a couple of days off for personal reasons, without further explaining the reasons.

[20] The next Tuesday or Wednesday, October 16 or 17, 2001, the Plaintiff, when asked, told the General Manager, Patrick Desmond, by telephone that he had given MacKenzie a day off the Friday before and that he had not returned.

[21] Desmond kept asking the Plaintiff what the status was with MacKenzie, but the Plaintiff was unable to reach MacKenzie. The Defendant alleges that the Plaintiff did not try hard enough to locate MacKenzie and was in fact concealing the fact that he had quit his job over an exchange of words on October 10, 2001.

[22] At one point the Plaintiff asked Head Office to prepare a Record of Employment for MacKenzie but Head Office did not as they did not know where he could be reached.

[23] On November 2, 2001, MacKenzie’s wife called the Saint John head office to ask about a separation slip for her husband. The next day, Desmond spoke to MacKenzie who advised of the reasons he had quit his employment.

[24] On November 6, 2001, the Plaintiff was given a letter which reads in part as follows and was dismissed for cause:

As a result of ongoing issues and concerns regarding your conduct with Melanson’s Waste Management Inc. (the “Company), I have decided to terminate your employment effective immediately. The reasons include:

· Your confrontational attitude with co-workers and peers;

· Being unsupportive with other Division Managers (not being a team player);

· Mood swings that result in poor communication and employee dissatisfaction;

· Lying to your direct supervisor about the Danny MacKenzie issue.

In our business, strong relationships between employees, co-workers and supervisors are central to managing a division successfully. I have discussed these issues and concerns with you on a number of occasions during the past six months. I have seen no improvement during this time and can no longer tolerate the behaviour. For these reasons, your services with Melanson’s Waste Management are no longer required.

Enclosed are two cheques. One cheque is your salary plus two weeks pay in lieu of notice plus accrued vacation pay (less appropriate deductions and taxes) in the amount of $1385.78. The other cheque is the agreed relocation allowance of $3000.

[25] Brad Melanson replaced the Plaintiff for a while in Nova Scotia and testified that he spoke to MacKenzie on November 19th, 2004 and that MacKenzie returned to work for the Defendant the week after.

[26] David Harris in his textbook on Wrongful Dismissal states at the beginning of section 3.13 entitled “Dishonesty”:

“Dishonesty gives just cause for dismissal. Generally, dishonesty connotes conduct that the employee knows would be so regarded by reasonable and honest people. Employees in positions of trust and/or authority are held to a higher standard of honesty than other employees. The traditional theory is that acts of dishonesty reveal an employee’s bad character, which is a sufficient basis for dismissal. Recent cases have looked more toward the employee’s intentions. If the employee had no intent to defraud or deceive the employer, just cause will likely be rejected. Condonation of dishonesty estops an employer from alleging just cause.” (The underlining is mine)

[27] For the following reasons, I find that the Plaintiff did not have the required intention that would amount to dishonesty warranting dismissal without cause.

[28] MacKenzie did not tell the Plaintiff he was quitting. The Plaintiff testified that he thought MacKenzie had had a bad day and would return to work.

[29] The Plaintiff knew MacKenzie had sometimes taken time off to attend court because of employment insurance problems. MacKenzie also was often hard to reach.

[30] The Plaintiff had himself hired MacKenzie and knew his behaviour well, and was justified in thinking that MacKenzie had not quit but was simply temporarily upset or had other reasons not to be at work.

[31] MacKenzie provided a statement received by the court in which he seems to defend the Plaintiff and in which he says that the Plaintiff on October 10, 2004 did not swear at him or make any abusive comments.

[32] It is true that the Plaintiff was not completely forthright with Melanson and Desmond concerning MacKenzie’s absence, but in the unique circumstances of this case, his lack of candour was not egregious and did not amount to the kind of dishonesty warranting dismissal without cause.

[33] In the circumstances, I find that the Plaintiff is entitled to six (6) months of salary in lieu of notice which amounts to $19,500.00 (the evidence is that the $5,000.00 bonus was the norm, if not automatic). This must be reduced by $1,625.00 to reflect the two weeks already paid by way of notice for a net amount of $17,875.00.

[34] The Plaintiff received unemployment insurance during those six months which he will have to repay.

[35] The Plaintiff is also entitled to the $5,000.00 yearly bonus for the eight months he worked as Manager for Nova Scotia, that is the sum of $3,350.00.

[36] The Plaintiff is also awarded $200.00 per month for six months, that is $1,200.00, to compensate for the loss of the use of the company truck which use was limited to going to and from work, trips to Moncton, and other small personal errands.

[37] The Plaintiff is not entitled to damages for loss of medical insurance as he did not purchase any insurance to replace the lost coverage.

[38] The Plaintiff shall therefore have judgment against the Defendant in the amount of $26,461.50 being $22,425.00 plus interest at 6% per annum from February 1st, 2002 ($4,036.50).

[39] The Defendant shall pay costs to the Plaintiff which are fixed at $3,000.00 using Scale 3 of Tariff “A” of the Rules plus taxable disbursements.

DATED at Moncton, New Brunswick, this 28th day of January, 2005.

ALFRED R. LANDRY, J.C.Q.B.