0787-98-ES Anthea Koon, Applicant v. Juriansz & Li and Ministry of Labour, Responding Parties.
BEFORE: Christopher J. Albertyn, Adjudicator/Referee.
APPEARANCES: David Sterns and Anthea Koon for the applicant; H. Keith Juriansz and Helen Lasebnik for the responding employer; Andrea Esson for the Ministry.
DECISION: February 8, 2000
THE ISSUE
This is an employee application filed pursuant to the provisions of section 67 of the Employment Standards Act (‘the Act’) for review of a refusal by an Employment Standards Officer to issue an Order to Pay in the applicant’s favour.
The Ministry of Labour was excused from further participating in the proceedings after an initial appearance when it became obvious that the case was primarily concerned with a factual dispute between the applicant and the employer, both of whom were represented by counsel.
The applicant is a lawyer. She was working as an associate of the responding employer (‘the employer’ / ‘the firm’) until July 16, 1996 when she was fired for insubordination. She claims she ought to have been paid two months’ salary in lieu of notice, plus commissions which would have been earned during that period. The Employment Standards Officer who considered the claim accepted the employer’s explanation for the termination of the applicant’s employment and found that the exemption contained in section 57(10)(c) of the Act applied to the applicant’s claims. That provision reads:
(10) Subsections (1) and (2) [requiring that notice of termination of be given to employees] do not apply to,
(c) an employee who has been guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer;
THE FACTS
The applicant’s employment relationship with the employer began on August 2, 1994, when her articles began. They lasted until July 28, 1995. The applicant was a good worker; keen, diligent and entrepreneurial. She was paid all that was due to her and issued a Record of Employment upon the conclusion of her articles. She was offered a position with the firm upon her admission to the Bar. The applicant started the Bar admission course in August 1995. She continued to work for the firm during the period of her Bar admission course attendance, as an independent contractor. She was paid $12 per hour for the time spent. She worked in excess of 450 hours during this period. She passed the Bar admission course, she was called to the Bar on February 7, 1996 and her employment as an associate with the firm started on February 9, 1996.
During the period of the applicant’s employment from February to July 1996, there was no complaint concerning the quality of her professional work. She was praised for her diligence. She received no discipline of any sort. She was a hard worker.
Mr. Juriansz is the managing partner of the firm. He has practised law since 1977. He and Mr. Li have practised together in partnership since 1989. Discussions were held between the applicant and Mr. Juriansz concerning the terms of her employment. Thereafter the applicant prepared a written document of the terms she wished to see in her employment contract. Some of those terms were agreed by Mr. Juriansz, some were not agreed. The agreed terms included the following: the applicant was to earn $37,500 per annum, she was to receive 15% on fees earned on immigration files she worked on and billed and 15% on all files she referred to the firm. The applicant was to be paid for statutory holidays and she was to have 3 weeks vacation per annum.
The applicant wanted two months notice of termination of the employment contract. Although Mr. Juriansz says that was not agreed at the time, during the hearing he accepted that he probably would have agreed to that period of notice as being reasonable, subject to the firm’s right to terminate the employment contract without notice for cause.
What was not agreed concerned the application of the applicant’s vacation entitlement. Since the firm’s inception (and, before that, since Mr. Juriansz commenced practice for his own account) the vacation policy has been that employees are not entitled to take any vacation during their first year of employment. They earn vacation during the period, but they can only take the accrued vacation at the conclusion of the first year, and so on after each succeeding year. The corollary to this policy is that all vacation entitlement must be used in the year in which it has accrued. Thus, between month 12 and month 24, all the vacation entitlement earned during months 1 to 12 must be used up. Upon request to Mr. Juriansz, in his capacity as Managing Partner of the firm, an employee can ask, and, for good reason, be granted unpaid leave during the first year of employment. In general the firm discourages vacation in the first year of employment. Similarly, Mr. Juriansz can approve (though rarely does) the carry over of a vacation entitlement into the next period.
Mr. Juriansz says that he explained the firm’s vacation policies to the applicant. She disputes that. Whether that occurred or not, what is clear is that the applicant and Mr. Juriansz had different understandings of the applicant’s vacation entitlement. The applicant knew one part of the policy. She knew that she had to take all of the vacation she was entitled to in the year concerned. Her understanding differed from the firm’s policy as regards the year in which the vacation had to be taken. The applicant believed she had to take her vacation entitlement for her first year of employment during that year. So, the firm (and Mr. Juriansz) understood that the applicant was not entitled to take any vacation during her first year and the applicant was under the impression that she had to take all of her vacation in that year.
The applicant took two days leave with Mr. Juriansz’s permission early in July 1996. When she received her pay record she discovered that the firm had treated those days as unpaid leave. She phoned Mr. Juriansz and Mr. Li over the weekend following receipt of her pay slip and left voice mail messages inquiring why two days pay had been deducted. On Monday morning, July 15, 1996, Mr. Juriansz heard the voice mail message the applicant had left for him. He had to be in court that day. Prior to going to court he decided to pop into the applicant’s office to explain the deduction to her. Mr. Juriansz explained the firm’s policy that vacation days taken in the first year of employment were unpaid. The applicant then asked if vacation days had to be taken in the same year in which they were earned, and Mr. Juriansz confirmed that to be so. The applicant then inquired as to whether Mr. Juriansz had agreed to her taking the two days vacation and he confirmed that he had, but he explained that she could not be paid for vacation taken in her first year.
The applicant then became agitated. She and Mr. Juriansz were operating from different premisses. For Mr. Juriansz, the firm’s policies (which he repeated to the applicant) fitted logically together — there was no vacation in the first year of employment; the vacation earned from the first year of employment had to be taken in the second year of employment, and so on. The applicant saw the situation very differently. The policy seemed illogically unfair to her — she had to take her vacation in the year she earned it, which she understood to be her first year of employment, and yet that was going to be unpaid vacation. She saw herself as being caught in a cleft stick — she was obliged to take all her vacation (she thought, mistakenly, in her first year of employment), she could not carry it over; yet she could not get her vacation paid in her first year. She felt that a grave injustice was being done. She saw it as a violation of what she understood to be the arrangement she and Mr. Juriansz had reached concerning her terms of employment and she saw it as a violation of the Act. She could not comprehend how Mr. Juriansz and Mr. Li, with whom she worked well, for whom she had a high regard and for whom she had worked very hard indeed, could do that to her. She felt betrayed by them.
It appears to me from the evidence presented that, at the time, neither Mr. Juriansz nor the applicant was able to see the different assumptions upon which they were operating. Mr. Juriansz does not seem to have been aware of the ‘Catch-22' situation the applicant saw herself in. The applicant did not comprehend how the policy actually worked. In her words, she had to choose between getting her vacation and no pay; or getting paid with no vacation. Mr. Juriansz at least recognized that there might have been a misunderstanding between them and he suggested that to the applicant. She would not hear of it. She insisted that she was told that she had to take all of her vacation that year and that the firm could not treat her vacation as being unpaid.
The applicant said to Mr. Juriansz that he had told her that she could not carry forward her vacation, yet now the firm was deducting pay for the two days of vacation she had taken. Mr. Juriansz confirmed that the firm’s policy was to withhold wages for vacation taken in the first year of employment because the accrued vacation for that year only became available (and had to be taken) during the following year. In a sense, vacation was exercisable in arrear. This was a surprise to the applicant. She was shocked to hear that. She disputed Mr. Juriansz’s interpretation of their agreement and he responded by inquiring if she was saying he was a liar. That did not help to mollify the applicant.
It became obvious to Mr. Juriansz that the applicant was not satisfied by his explanation of the policy, and that a quick resolution of the matter was not to occur. He reiterated to the applicant that he had to go to court and he would discuss the matter further with her that afternoon when he returned from court. The applicant was not willing to accept that. She wanted the matter sorted out there and then. She stressed that she had to take her vacation and, under the Act, she was entitled to be paid. By this stage the applicant was talking very loudly. She had become extremely agitated. Mr. Juriansz wanted to let her calm down and he had to go to court. He asked the applicant to ‘cool down’. He said that he would talk to her later regarding her vacation and that he could not continue the conversation then. The applicant was determined to deal with the matter then. There is some dispute as to Mr. Juriansz’s tone of voice. The applicant says he was shouting at her. His evidence, and that of the other witnesses, does not corroborate that. They say Mr. Juriansz’s voice was firm, yet controlled.
Mr. Juriansz then left the applicant’s office and walked down the corridor to his own office which was some distance away. The applicant followed him, close on his heels, speaking extremely loudly, reiterating that her vacation entitlement was ‘in the contract’ (referring to the document she had prepared as a basis of the terms of her employment). Other members of staff heard the applicant speaking very loudly to Mr. Juriansz. There were clients in the office with some of the lawyers. Mr. Juriansz told the applicant that it was a private matter, it was not appropriate to deal with it publicly, he had to go to court and he and she should deal with the issue later.
Mr. Juriansz went to his office to gather his briefcase and his books for his court appearance. The applicant followed him into his office. Mr. Juriansz told her to leave his office. Instead she slammed his office door shut, causing the glass wall between the office and the corridor to shake. She says the door slipped in her hand; it was not her intention to slam the door when closing it. Mr. Juriansz went to his door and opened it, saying to the applicant that she must leave his office. He was firm and insistent. According to Mr. Juriansz, the applicant came as close to him as she could, short of actually touching him. (The applicant says that Mr. Juriansz came right up to her, but, given the context and what followed, I find this to be a less likely account). She was virtually right up against him. In his words, she was incensed. The thought struck him that she intended to assault him. He said, ‘are you going to assault me?’ She misheard him, and replied, ‘no, it’s you who are insulting me’, which she repeated several times. Mr. Juriansz then turned around and went back to his desk to gather his books and his briefcase. The applicant followed him and cornered him in the area behind his desk, blocking his exit. Mr. Juriansz told her to leave his office right away. She refused and repeated that she had a contract and that she was entitled to her vacation pay. The applicant says that she asked Mr. Juriansz if she could discuss the matter later with him. That evidence is contested by Mr. Juriansz and the other witnesses, and it strikes me as being unlikely in all the circumstances.
Mr. Juriansz gathered his material, passed by the applicant and went out of his office. In the corridor leading to the reception area the applicant again blocked his path. Mr. Juriansz told the applicant to go back to her office and stop doing what she was doing. He then went to the reception area and left the office for court with one of the junior lawyers in the firm.
Several members of Mr. Juriansz’s staff heard the commotion and they confirm Mr. Juriansz’s account. The applicant does not contest it other than as described above. She also says that she was upset, but not angry. The evidence seems overwhelming that she was extremely angry.
Mr. Juriansz returned from court that afternoon. The applicant was working in her office. He chose not to speak to her then. He wanted to think about the situation and to talk to his Office Manager, Ms. Lasebnik, and his partner, Mr. Li. Mr. Juriansz thought he had cause to terminate the applicant for her behaviour earlier in the day. He thought, though, if she were willing to acknowledge that her conduct was unacceptable, if she showed remorse and was willing to apologize and if she made clear there would be no repetition of that sort of behaviour he would issue a stern written warning to her and allow the incident to pass. He discussed this course of action with Ms. Lasebnik and Mr. Li. They concurred with his view.
On the following day, Tuesday, July 16, 1996, Mr. Juriansz went to the applicant and said that he wanted to meet with her that afternoon in the library. The meeting took place. Mr. Juriansz was accompanied by Ms. Lasebnik. Mr. Juriansz said that he had convened the meeting to deal with the applicant’s conduct on the previous day. He made clear that the purpose of the meeting was not to discuss her vacation entitlement or the firm’s vacation policy. He said that a later meeting could occur to deal with that. The purpose of the meeting was to discuss the applicant’s behaviour the previous day. Mr. Juriansz said that he regarded the applicant’s conduct as having been totally unacceptable and he felt an outburst such as had occurred could not be tolerated in the office. He stressed that problems could not be dealt with in that way. He said he believed he had sufficient cause to terminate the applicant’s employment, but that if she were willing to acknowledge that she had behaved inappropriately, if she apologized and undertook it would never happen again, he was prepared to put the incident to rest.
The applicant refused to engage on the issue raised by Mr. Juriansz. She was determined to speak of the deduction from her pay and of her vacation entitlement. She had a copy of the Act with her and she reiterated that she was entitled to a paid vacation. She referred to the vacation provisions of the Act. Mr. Juriansz explained that he had convened the meeting and that the purpose of the meeting was to discuss her behaviour on the previous day and not the merits or demerits of the firm’s vacation policy. He said the problems concerning vacation could be discussed at another time. Mr. Juriansz made several attempts to steer the conversation to the topic for which he had convened the meeting. The applicant refused to be distracted from the issue of her vacation pay entitlement. She said that she was entitled to defend her employment rights. She explained at the hearing that that she would not apologize because she was not a slave and she deserved to be treated with respect. After some 15 minutes Mr. Juriansz said that the meeting was over. He felt that he and the applicant were so at cross-purposes there was no use in continuing. The applicant returned to her office. The impression gained by Mr. Juriansz was that the applicant was ungovernable. It was clear to him that the applicant was not going to cooperate at all. He decided that her employment would be summarily terminated.
Mr. Juriansz went to Mr. Li and informed him of what had occurred and of what he had decided. Mr. Li agreed that the applicant’s termination was appropriate in the circumstances.
Given what had occurred in the meeting, Mr. Juriansz suspected that he would have difficulty requiring the applicant to leave the office upon being terminated. He asked the firm’s receptionist to arrange for a security guard to be present in case such assistance was necessary. When the security guard arrived in the reception area, Mr. Juriansz went to the applicant’s office and informed her that her employment was terminated with immediate effect. He told her to gather her immediate personal belongings and leave the office forthwith. He said her other possessions would be packed up for her and she could collect them from the office on the following day. He asked for her office key and her pass card. She gave those to him.
The applicant began to gather together all of her possessions and to pack them. Mr. Juriansz reiterated that she was to take only her personal belongings and to leave, and that her remaining possessions, e.g. her books, would be packed for her to collect later. The applicant did not pay attention to the distinction Mr. Juriansz was making and continued to pack up her books. Mr. Juriansz then called for the security guard. In the presence of the security guard, Mr. Juriansz repeated his instruction. The applicant ignored it. The security guard then cautioned her that she was trespassing. Mr. Juriansz then said that if she did not leave immediately he would call the police. The applicant said that she would leave, but then did not. Mr. Juriansz picked up the telephone to call the police. The applicant then took her purse and some personal belongings and she was escorted out of the office.
The applicant’s property was packed up for her in boxes, which she collected on the following day. She was not paid termination pay.
ARGUMENT
The applicant’s counsel argues that the employer did not have cause to terminate the applicant’s employment summarily. He contends that the applicant was fired for exercising rights under the Act. The applicant accepts that she was agitated by what she regards as an unlawful deduction from her salary, but her behaviour was, her counsel argues, understandable in the circumstances. She felt betrayed. She might have over-reacted, but in doing so she was seeking to address a legitimate grievance. Counsel stresses that the applicant was an excellent worker and a professional asset to the firm. Counsel suggests that Mr. Juriansz could have dealt with the matter in a much less confrontational manner, and the outcome would likely have been very different. For example, counsel contends, at the meeting on July 16, 1996, Mr. Juriansz might have dealt with the applicant’s vacation concerns before focussing upon her behaviour.
The applicant’s counsel argues that the applicant was not guilty of wilful misconduct, nor disobedience and that the exemption contained in section 57(10)(c) of the Act has no application to the matter. He argues that the applicant is entitled to her termination pay of two months salary, plus damages for the amount she would have earned in commission over the two month period.
Mr. Juriansz contends that the applicant was grossly disobedient and that she was guilty of gross misconduct on both July 15 and July 16 and that the employer is exempted from the obligation to pay termination pay by operation of the provisions of section 57(10)(c) of the Act.
DECISION
An employment relationship is relatively unequal. One party, the employee, is expected to obey the lawful instructions of the other party, the employer. Instructions which fall within the contemplation of the employment contract are deemed to be lawful. The relationship is one of relative dominance and subordination. That is more obvious in non-professional contexts, but it applies no less in a professional office. No doubt the inequality of the relationship in a professional context is articulated perhaps less often. Associates are required to follow the lawful instructions of the managing partner of the law firm, no matter how much they might disagree with those instructions. A failure to do so constitutes disobedience. A persistent and flagrant refusal to do so constitutes insubordination.
The evidence establishes that the applicant was insubordinate and wilfully disobedient. She refused to accept Mr. Juriansz’s authority over her. She repeatedly refused to obey his instructions that she return to her office and that the matter of difference be dealt with later in different circumstances. As the applicant’s counsel argued, Mr. Juriansz might well have dealt with the matter in a more conciliatory way — he might have addressed the applicant’s concerns over her vacation pay before dealing with her insubordination — that might have been better and the situation might have been resolved differently. But Mr. Juriansz was not obliged to do so. He was entitled to act as he did. He was entitled to satisfy himself that disputes between the applicant and the firm would be dealt with in a less aggressive, less dogmatic and less confrontational manner than had occurred on July 15. He sought to clarify the matter with the applicant on July 16. He wanted to be able to satisfy himself that there would not be a repetition of what occurred on July 15. He recognized that the applicant was a good worker, that she was dedicated to the firm and that she was diligent. These were assets she possessed and, from his perspective, if she understood what he found offensive about her behaviour on the previous day, he saw the possibility of the employment relationship being restored. But when it became obvious to him at the meeting on July 16 that the applicant had no sympathy for his concern, and that she was not willing to entertain it, he determined that the employment relationship was irrecoverable. He could not get the assurance he needed, with the result that he concluded that he could not be sure that the applicant would not, on another occasion, behave in the same inappropriate way. Mr. Juriansz was not willing to take that risk. In the circumstances of the applicant’s disobedience and insubordination, which Mr. Juriansz did not condone, he was entitled to terminate the applicant’s employment and to do so summarily, i.e. without notice or termination pay in lieu of notice.
DISPOSITION
- By reason of the exemption contained in section 57(10)(c) of the Act, the responding employer was not obliged to give notice of termination, or any pay in lieu of notice. The determination of the Employment Standards Officer is confirmed. The application is dismissed.
“Christopher J. Albertyn”
Adjudicator/Referee