Employment tribunal rejects Coquitlam gymnastics facility’s appeal in vacation-pay dispute with former CFO

A Coquitlam-based gymnastics facility has lost its appeal before the B.C. Employment Standards Tribunal after it attempted to overturn a ruling that found it owed vacation pay and compensation for length of service to its former chief financial officer.

In a July 23 decision, the tribunal dismissed Club Aviva’s appeal of a January 2025 determination that sided with longtime employee Desiree Armstrong, who worked at the gym for more than 16 years before being terminated while on medical leave in 2023.

The tribunal found that Club Aviva failed to prove the termination was justified and dismissed its claims that Armstrong had improperly increased her own vacation pay during her tenure as CFO.

Armstrong began her medical leave in May 2022, with her employment formally terminated in September 2023. The gym argued it discovered after her departure that she had improperly raised her vacation pay from 6 percent to 8 percent of earnings, claiming it had not authorized the change and that it constituted just cause for dismissal.

But the tribunal found no error in the original decision that Club Aviva had been aware of the increased vacation rate for years – and had even reduced a similar increase for a colleague without questioning Armstrong’s pay.

“The appellant’s own admission that it discovered the complainant’s increased vacation pay in August 2023, before (her) termination took effect, but did not act on it for just cause dismissal” undermined their case, wrote tribunal member Lynn Muldoon.

Muldoon also noted that Armstrong’s record of employment had been issued using her login credentials after she was already on leave – undermining the gym’s claim that she was the only one who could have accessed the payroll system.

In addition to its vacation pay arguments, Club Aviva claimed Armstrong’s conduct violated her fiduciary duty and that her long medical absence had frustrated the employment contract.

The tribunal rejected both positions. It found that the alleged fiduciary breach was just a reframing of arguments already considered during the initial investigation. It also said the company had failed to raise contract frustration as a defense at the appropriate time, noting the termination letter citing her “lengthy absence” was never even delivered to Armstrong.

“Parties may address issues arising directly from the determination or submit evidence unavailable during the investigation, but they cannot advance arguments based on evidence already known at that stage,” the decision stated.

The company also sought to introduce two statutory declarations – one from its director and another from her spouse – as new evidence. But the tribunal ruled the declarations were not admissible because they could have been submitted during the original investigation.

Muldoon concluded that Club Aviva’s appeal “lacks merit” and confirmed the original determination ordering the company to pay Armstrong both vacation pay and compensation for length of service under the Employment Standards Act.