Monday, 1 June 2015

The High Cost of Being Unreasonable (Part II)

As previously reported, for an employer, being unreasonable can have some dramatic costs.  As one dentist recently learned, the price can be quite high.  In Partridge v. Botony Dental Corporation, the employer was ordered to pay not only pay in lieu of reasonable notice, but damages for violating the employee's human rights.
The plaintiff started working with the dental office as a hygienist in March 2004, but by 2007 she had been promoted to office manager.  She took two maternity leaves, but following her second leave, the employer advised her of some changes in the terms and conditions of her employment.  She would be returning as a part-time hygienist, not as the office manager, and she would be required to work shifts that conflicted with the availability of childcare for her two children.  When she told the owner of the office that she could not work the hours for which she was being scheduled, and questioned why she was not being returned to the position she held before her leave began, her employment was terminated, purportedly for cause.  The employer argued that the plaintiff was terminated for cause, as she had violated confidentiality by removing sensitive materials from the office, had plotted to start up a competing business and lure away patients and co-workers to join the new practice, harassed colleagues and management, was insolent or insubordinate, and had rejected her former position and demanded unreasonable changes to her hours of work.  The plaintiff's position was that the employer had violated the Employment Standards Act, 2000 and the Human Rights Code, by refusing to return her to her former job and then terminating her employment, and that she was entitled to reasonable notice of dismissal.
The Court considered the evidence of both parties, and held that it preferred the plaintiff's evidence on any point where it was in conflict with the defendant's evidence, because defence witnesses were all clearly trying to "vilify" the plaintiff and their evidence was contradicted by documentary evidence.  The Court found that the employer had not established any of the elements of cause it had raised.  The plaintiff had not refused her old role - her return to hygienist duties was unilaterally imposed by the employer, without any consultation, as were the changes to her hours of work, which the employer ought to have known would conflict with the plaintiff's childcare obligations.  When the plaintiff tried to assert her rights, the employer retaliated by firing her, and then effectively trumped up its reasons for dismissal.  There was no evidence that the plaintiff had actually attempted to challenge the owner's authority, nor had she breached confidentiality in any meaningful or damaging way.  There had bee discussions between the plaintiff and a co-worker about starting a competing practice, but those discussions did not come to fruition and did not take advantage of any confidences.  A handful of patients did leave the dental office after the termination of the plaintiff, but they had all been friends of the plaintiff previously and there was no evidence that she had made any efforts to attract those patients to the practice where she went to work afterward.  The allegedly insolent and insubordinate behaviour was simply the plaintiff's understandable reaction to the negative and confrontational environment created by the employer upon her return from leave.

In the result, the Court found that the plaintiff was entitled to pay in lieu of 12 months' reasonable notice, less amounts already paid and the income she had received in mitigation during the notice period.  The Court went on to find that the employer had violated its return-to-work obligations under the ESA by not offering the plaintiff her former position at the end of her leave.  The evidence established that the office manager position still existed at that time and that the plaintiff had not elected to revert to a hygienist.  Moreover, the Court found that the employer had violated the reprisal provisions of the Act in all of its interactions with the plaintiff after she asserted her statutory rights. With respect to the plaintiff's claims under the Code, the Court held (on the basis of the analysis in Johnstone & Seeley (discussed here)) that the employer had discriminated against her on the basis of family status.  The employer had not provided any explanation for the change in the hours of work imposed on the plaintiff, and the Court accepted that the change was imposed in retaliation for her request to be returned to the office manager position.  In the result, the Court ordered the employer to pay human rights damages in the amount of $20,000 (approximately 1/2 of the amount she was awarded in lieu of reasonable notice). At para. 98, the Court stated:
The discrimination experienced by Partridge clearly did injury to her dignity, feelings and self-respect, as her testimony made clear that she took great pride in her job and the efforts that she had made on the defendant’s behalf. At the time of her testimony in this trial, she remained visibly emotionally affected by the ordeal. As in Johnstone, I found that the discrimination arose out of Jauhal's wilful and reckless disregard for her legal obligations as an employer. Accordingly, I found that the sum of $20,000 for breach of the Human Rights Code was a just and proper sum to signify the seriousness of breaches of this nature. Particularly where the discrimination has ultimately taken the form of dismissal, this particular breach affects a group of individuals who typically require childcare arrangements out of economic motivation. The discrimination not only has the effect of causing injury to dignity, feelings and self-respect, but may have an economic impact on individuals who can often least afford it. The Court’s censure is warranted by way of an award that will act as a deterrent to employers who are unwilling to accommodate childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so.
The decision makes clear the risk to employers when terminating an employee shortly after his/her return from a statutorily-protected leave of absence, particularly if the employee's former role continues to exist.  Unless an employer can establish a strong case for cause or an actual redundancy, the risks of doing so are likely greater than any potential benefit.  Moreover, employers need to be considerate of employees' childcare and other family obligations when the employee returns to the workplace - failing to do so (especially in a high-handed manner) can be extremely expensive.

Do you have questions about how to manage an employee's return to work from leave?  Have questions about accommodating family obligations?  Contact Lance Ceaser for expert guidance.

1 comment:

  1. This comment has been removed by a blog administrator.