Law Times

Page 4 May 9, 2016 • Law TiMes www.lawtimesnews.com Ruling against former Telus developer Bad faith claim over sabotage investigation BY MICHAEL MCKIERNAN For Law Times A superior court judge has ruled against a former Telus devel- oper who sued the company for $2 million aer it reported her to police over a billing malfunction that cost the telecommunications giant hun- dreds of thousands of dollars. An internal Telus report named Jan Persaud and her old boss as suspected saboteurs of the company's billing system for texts and data services shortly after both left the firm in 2004. Neither was ever charged, but Persaud claimed the prepara- tion of the report was done in bad faith, and that the resulting police investigation, which in- cluded a search of her property, caused her mental distress. As a result, she requested $2 mil- lion in aggravated and punitive damages. According to Ontario Superi- or Court Justice Benjamin Glus- tein's April 5 decision, Persaud maintained she could not have been responsible for the breach because she had given up all pos- sible access to the Telus servers when she departed in May 2004. Telus dropped a counterclaim against her over the events last year, ahead of the trial. While Glustein emphasized that he made no finding as to whether Persaud actually en- gaged in the conduct described in the Telus report, he conclud- ed her claim must fail because Telus had set up the investiga- tion without any preconceptions about blame, and had a "good faith basis" to conclude she was responsible. "Even if the conclusions in the Report were wrong (an issue I do not decide), the conduct by Telus would be, at worst, an 'honest mistake,'" Glustein wrote. "We're obviously very disap- pointed and will be appealing," says Karen Zvulony, a Toronto employment lawyer with Zvu- lony and Company PC who acted for Persaud. Telus' coun- sel declined an opportunity to comment. Glustein's decision says Per- saud joined Telus in the late 1990s, later working primar- ily as a Java developer building code and providing support for its "IP Biller" program. The program identifies and collects information on cellphone users' activities, and then passes the in- formation on to the company's billing department so that they can be charged for it. During her time working on the program, Persaud claimed her working hours jumped sig- nificantly due to the increasing importance of data services, in- cluding Internet browsing and picture messaging, to Telus and its customers. Between 2000 and 2004, Glus- tein's decision reveals Telus' rev- enue from data ballooned from around $50,000 to $72 million. As a result of the extra work and a poisoned work environment, Persaud claimed she had been constructively dismissed. However, Glustein rejected that claim, after finding that the real reason for her resigna- tion was her dissatisfaction with the treatment of Navaid Mufti, a former teacher of hers who originally hired her as a co-op student and acted as her boss for much of her tenure at Telus. Mufti left the company two days before Persaud, and would later help her find new jobs at other employers. "Even if Persaud could es- tablish that (i) there was a sig- nificant increase in her work- ing hours; or (ii) she suffered a poisoned work environment, I accept Telus' submission that Persaud did not leave for those reasons," Glustein concluded. Doug MacLeod, a Toronto employment lawyer, says he was surprised to see the judge place so much emphasis on the reason for Persaud's resignation. "This idea that even if there was a poisoned work environ- ment, because you left for a dif- ferent reason, it wasn't construc- tive dismissal; I've never seen that issue argued before, but it doesn't necessarily follow for me," he says. Persaud's repeated attempts to play down her friendly re- lationship with Mufti while giving evidence led in part to the judge's declaration that she was an "unimpressive witness" whose evidence he rejected when it conf licted with that of other witnesses on material points. Persaud "frequently attempted to underplay or misrepresent facts that she considered to be unhelp- ful to her case," Glustein wrote. According to the judgment, Persaud's successor in the IP Biller support role ran into prob- lems almost immediately when the system begin bombarding him with error messages on May 21, 2004, two days after Per- saud's resignation. The impact was minimal. However, a second, more se- rious malfunction was spotted soon after, which prevented the billing system from registering any revenue for text services. A further malfunction occurred on June 8, 2004, crashing a rev- enue-sharing program. In its report, the Telus inves- tigation team concluded that the malfunctions resulted from sabotage, and that Persaud and Mufti were the only suspects since nobody at Telus had suffi- cient knowledge of the program to carry out the changes. Mufti's former supervisor, a senior executive at Telus, then called in the police, but their in- vestigation closed without any charges being laid. MacLeod says it will be in- teresting to see if other plain- tiffs follow Persaud's example of claiming for bad faith termina- tion in relation to an employer's conduct that occurred after their departure, likening it to after- acquired cause, which allows employers to claim just cause for a dismissal, even if they learned of the reason after termination had already occurred. Glustein declined to rule on whether the principle could ex- tend to events post-termination, because he had already decided Telus acted in good faith in its preparation of the report. Almost a year after her de- parture, Persaud had another run-in with Telus when she was offered an opportunity to work with TekSystems, an I.T. firm providing services to Telus. However, the deal fell through when a Telus manager decided not to engage Persaud, result- ing in a $100,000 claim by Per- saud against Telus for inducing a breach of the contract between her consulting company and TekSystems. 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