0506-99-ES Dr. Kenneth L. Glick, Applicant v. Michelle Burke and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 30012558
BEFORE: Anthony Brown, Vice‑Chair.
APPERANCES: Kenneth L. Glick, Milton Verskin and Shelley Glick for the applicant; no appearing for Michelle Burke; Heidi Ann Lazar-Meyn for the Ministry of Labour
DECISION OF THE BOARD; April 14, 2000
This is an application for review pursuant to the Employment Standards Act (“the Act”).
A hearing was held on March 17, 2000. The responding party, Michelle Burke, failed to appear by 10:00 a.m., although duly notified of the date of the hearing by the Registrar.
By Order No. 49005, the Employment Standards Officer ordered the applicant to pay Michelle Burke four weeks’ termination pay in the amount of $2,600.00. The applicant seeks to have that order rescinded.
Dr. Kenneth Glick gave sworn evidence about the circumstances of the termination of Ms. Burke’s employment. Dr. Glick is a dentist and he operates a small dental office. Michelle Burke worked for Dr. Glick from 1994 to 1998 and was qualified both as a dental assistant and as a preventive dental assistant. She had an important role in the office because she could take on enhanced duties, such as polishing, taking impressions, and assisting the hygienist. Dr. Glick stated that when she was absent from work, it was difficult and expensive to replace her with staff from temporary employment agencies. The temporary dental assistants were unfamiliar with the doctor’s patients and with office routines. They were often not qualified as preventive assistants. Having to hire temporary help sometimes meant that patients’ appointments were delayed or rescheduled.
Dr. Glick stated that Ms. Burke went on vacation after July 30, 1998 and was scheduled to return on August 10, 1998. On August 1, 1998 a person claiming to be Ms. Burke’s mother called the Glick residence and informed Dr. Glick’s wife that Ms. Burke would not be returning to work for “a while”. The mother called again on August 7th and asked if Ms. Burke could have a further two weeks off “to recuperate”. The doctor agreed to this extension. On August 14th, the mother called and requested a Record of Employment to enable Ms. Burke to collect employment insurance. This was provided by the doctor. On August 23rd, the mother called and informed Dr. Glick through his wife that Ms. Burke would need one or two months before she would be able to return to work and stated that the doctor “may want to throw together a severance package”.
Dr. Glick stated that these events left him not knowing if Ms. Burke would return to work at all. He wrote to Ms. Burke by letter dated August 27, 1998 and informed her that her position would be kept open until September 14, 1998. He asked to be informed by September 2nd if she intended to return to work. He also asked for a medical certificate in respect of her absence from work. The letter stated in part:
“If I do not hear from you and/or if I do not receive the requested information, I will have no alternative but to terminate your employment and seek another assistant.”
On September 2, 1998, Ms. Burke wrote to Dr. Glick and stated that she would be “unable to return to work on September 14, 1998 because of medical reasons.” Ms. Burke did not provide a medical certificate and did not state when she intended to return to work. On September 14th, the doctor terminated Ms. Burke’s employment by letter.
Shelley Glick is the wife of Dr. Glick and is the office manager of the dental office. She testified that she took all of the above-mentioned telephone calls at the Glick residence from a person identifying herself as Michelle Burke’s mother. She confirmed the content of each call as stated by Dr. Glick. She also confirmed that no medical certificate was received from Ms. Burke.
Submissions
The applicant asserts that his contract of employment with Ms. Burke was frustrated by reason of Ms. Burke’s apparent inability to work due to some unconfirmed medical condition. Ms. Burke was a key person in the office and it was not possible to replace her adequately with a temporary dental assistant. The applicant argues that she did not inform the applicant when he might expect her back to work, leaving him with no opportunity to manage his affairs. The applicant submits that his efforts to accommodate Ms. Burke went beyond his legal duty to accommodate her, particularly when he had no proof that she was even ill.
The applicant argues, in the alternative, that the circumstances come within the exception established by clause 57(10)(c) of the Act in that Ms. Burke was guilty of wilful misconduct or neglect of duty that was not condoned by the company. The applicant submits that Ms. Burke’s actions constitute a wilful refusal to work.
The applicant also argues that his letter to Ms. Burke giving her until September 14, 1998 to return to work was tantamount to two and a half weeks’ notice of termination.
The Ministry of Labour agrees with the applicant that the facts before the Board support the argument that the employment contract was frustrated.
Decision
The Board found the witnesses, Kenneth Glick and Shelley Glick, to be honest and forthright. Based on their sworn evidence, supported by copies of letters to Ms. Burke, the Board finds that Michelle Burke repudiated her contract of employment with Dr. Glick by simply refusing to show up for work. In the absence of facts indicating the contrary, the Board finds that this was wilful neglect of duty. Dr. Glick found himself in a completely untenable situation in which he did not know if a key employee ever intended to come back to work. Once Dr. Glick realized this, he sent a warning letter to Ms. Burke, advising of her possible termination. He did not condone her behaviour.
It is clear from Dr. Glick’s evidence that he could not hire temporary dental assistants indefinitely. Aside from the expense, they could not do the job as well as a regular employee, and this would inevitably affect his business and his relations with patients. Ms. Burke did not respond to Dr. Glick’s extraordinary generosity by providing a medical certificate or an expected date of return, or by attempting to make some kind of arrangement with him (e.g. an extended leave) to enable him to carry on properly. It may be that there are medical explanations for Ms. Burke’s actions, but there is no evidence of these before the Board.
Having found that the exception mentioned in clause 57(10)(c) of the Act applies, it is unnecessary to determine whether any period of notice was given to Ms. Burke, or whether the performance of the contract of employment was frustrated.
Dispostion
The order of the Employment Standards Officer is hereby rescinded.
The Director of Employment Standards Branch is directed to pay to the applicant all of the money held in trust in this matter ($2860.00), together with accrued interest thereon.
“Anthony Brown”
for the Board