COURT FILE NO.: 11-51488
DATE: 20120321
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MONIQUE DRAKE
Plaintiff
– and –
PETER BLACH
Defendant
Marcus Boire, for the Plaintiff
Stephen Bird, and Alanna Twohey, for the Defendant
HEARD: March 20, 2012
T.D. RAY, J
Introduction
[1] This is a summary trial pursuant to rule 76 following the order of Master McLeod dated December 15, 2011, of an action for damages for wrongful dismissal. The master’s order provided that all parties would file affidavits from each of their witnesses which would be filed as evidence for that party, and each party was entitled to examine in chief for a maximum of one hour. The rule permits time limited cross-examination and re-examination by each party.
[2] The plaintiff is a 46 year old medical secretary who was terminated by the defendant physician by letter dated March 4, 2011 with eight weeks working notice, after 12 years with him as his medical secretary. The defendant’s letter of dismissal, while cataloguing a list of reasons for her dismissal, does not state that she is being terminated for cause. However, his statement of defence clearly takes the position that the plaintiff was terminated for cause for “performance issues”, and that the eight week notice period was on the basis of advice given to him.
[3] The plaintiff’s position is that there was no “cause” justifying her dismissal, that while she had worked for him since October, 1998, her employment with a previous physician since July 1992 had been carried into her employment with the defendant who took over the previous physicians practice; and therefore her period of employment period should be considered as being 19 years.
[4] The plaintiff’s evidence included: a record of her pay deposits; a payroll statement dated July 1, 2010; a handwritten note from the defendant concerning her income from 2008 through June 2010; letters from the defendant concerning her employment dated October 21, 2010, February 16, 2011, and March 4, 2011; a sick note from the Cornwall Health Care Centre dated March 4, 2011; copies of submitted job applications dated July 8, 2011 to July 12, 2011; and her Real Estate Licence and tax receipts for her real estate course in May, 2011, and October 2011. The plaintiff also called as vive voce witnesses Ann Grant, an RN who worked for a week with the defendant before being dismissed, and a patient of the defendant concerning conversations and comments he overheard in the defendant’s office between the plaintiff and the defendant’s new wife, Ms. Socur.
[5] The defendant’s evidence included the plaintiff’s record of employment showing vacation pay of $693.77, that she was given eight weeks notice ($8162.00) and that she “quit”. The record of employment shows a first day worked as October 1, 1998 and last day March 4, 2011.
Issues
[6] The issues are
a. Whether there were sufficient grounds for the defendant’s purported termination of the plaintiff for cause to be upheld;
b. If not, what is the appropriate period of employment for calculation of her notice period;
c. And having regard to her income, period of employment, and her performance, what damages should be awarded.
Plaintiff’s Evidence
[7] The plaintiff’s evidence is that she was a graduate of the medical secretary program at St Lawrence College and started working for Dr. Cox at the medical clinic in July, 1992. In December, 1992, he retired and Dr. Holdsworth took over the clinic. In September, 1998, Dr Holdsworth told the plaintiff that she was leaving the clinic and that the defendant would be calling her about her continued employment. In her affidavit, she said that the defendant telephoned her later that evening and asked her to continue working for him at the clinic. In evidence she said that the defendant came into the office during September, spoke to Dr. Holdsworth and to her. The office closed for a week. She started working for the defendant October 1, 1998. Her evidence is that the defendant took over the patient files, office furniture, medical equipment, former support staff, and the same premises. The support staff included Ms. Grant, RN. She was terminated by the defendant shortly afterwards and was paid a severance allowance by him the terms of which are confidential.
[8] The plaintiff said she got on well with the defendant and his first wife. For example, since she had not worked Fridays for Dr. Holdsworth, the defendant allowed her to continue taking Fridays off and the defendants then wife worked to fill in.
[9] The plaintiff said that in the initial years, she was working 34 hours, that she had a second job working with the TD Bank where she worked late afternoons, evenings, and Saturdays. She said the defendant knew of her second job since when she left, she often told the defendant she had to get going or she would be late for her other job. In 2009-10, the job changed to requiring her to work 40 hours. She gave up the part time job.
[10] As of July, 2010, the plaintiff’s annual gross salary was $54,812.68. She had received increases from time to time; specifically December 5, 2008 because of added workload in converting office files to digital, a performance increase August 28, 2009, and a further increase July 1, 2010. The defendant wrote and gave her a cheque every two weeks.
[11] According to the plaintiff, In October, 2010, shortly after the defendant married Ms. Socur, the work environment changed. Ms. Socur began to involve herself in the workings of the office, and began threatening staff and patients alike. The atmosphere became tense and poisonous. Then, the plaintiff received a letter dated October 21, 2010 signed by the defendant setting out a number of complaints including a complaint that she was being overpaid, that she was not managing the phone lines properly, filing getting behind and attendance issues; and further establishing a number of working conditions such as no pay if the office is closed and she is not needed, two weeks holidays- preferably when the defendant takes his holidays, no compensation for sick days, and no pay for days off other than holidays. She was told she would have to complete time sheets to be sure she worked 40 hours. Her evidence was that these complaints had never been addressed to her previously, and in any event the performance complaints had no merit.
[12] Then in February, 2011, the plaintiff was told by Ms. Socur in the presence of the defendant that in error she was being overpaid, and that her salary would be $40,000 per annum instead of $54,812.68. A February 16, 2011 letter from the defendant confirmed “Over the years an error occurred, resulting in your gross salary becoming your net. As per the employment standards, I am giving you eight weeks notice that your salary will be readjusted to $40,000 a year, therefore not later that (sic) April 11.” March 4, 2011, she received a further letter. It catalogued a list of new complaints and reiterated that “in addition you are clearly refusing the adjustment on your salary”. The letter continued –
“Therefore you leave me no choice but to terminate your employment in this office.
Be notified therefore, with the present, that I am giving you 8 weeks notice at the end of which your employment in the clinic will be terminated..
I do reserve the right however, to end your employment before, and pay you the balance of the 8 weeks notice.
In the mean time, your job will be closely checked and supervised and should you commit an act which would constitute cause for dismissal, your employment will be terminated immediately without further notice owed.
We thank you for your service and wish you good luck in the future.”
[13] The plaintiff says that as a result of the stress from the poisoned work environment and termination, she was forced to go on medical leave for a month starting on the day of the letter, and never returned. She produced a medical note from Dr. Nanji dated March 4, 2011, supporting her medical leave to April 3, 2011.
[14] After her dismissal, she conducted a number of job searches and made applications June 8, 2011 through July 12, 2011; and between April and September, 2011 she took an online real estate course. The defendant’s counsel sent the plaintiff’s counsel a list of jobs. In evidence she said she applied for those as well but without success. She said she continued searching for jobs even while she was pursuing the online real estate course. On September 3, she started working as an agent full time with Exit Realty on a commission basis. She earned $800 in December, $1900 in January and $1136 in February, 2012.
[15] Mr. Coleman, a patient of the defendant gave evidence concerning his visits to the defendant’s office. He said he had been there a dozen times, had got to know the plaintiff who was warm and polite with patients. Ms. Socur, however, was abusive and rude to the plaintiff and patients. He said she called the plaintiff incompetent, criticized her handling of the phones in front of the patients, and criticized her for booking too many patients.
[16] Ms. Grant, a registered nurse worked briefly for the defendant when he first arrived at the clinic in Cornwall, before being dismissed. She believed she worked for him for about a week. She didn’t recall any conversation with the defendant before she showed up for work. Ms. Grant settled her employment claim against the defendant on a confidential basis.
Defendant’s Evidence
[17] The defendant’s evidence is that the plaintiff’s employment only started in October, 1998 but that while he took over several of Dr Holdsworth’s patient files, and took over Dr. Holdsworth’s “un-needed furniture and equipment” without his having requested it, he did not continue Dr. Holdsworths practice and thereby continue the plaintiff’s employment. He said he treated the plaintiff as a new employee. The defendant said he had no business arrangement with Dr. Holdsworth, paid her nothing, and entered into a new lease with the landlord. Without stating the source of his belief, he says in his affidavit that it is “my understanding that Dr. Holdsworth had terminated Ms. Drake’s employment and that as of October, 1998, Ms. Drake was unemployed.” He makes no mention of the September phone call referenced by the plaintiff, but did in evidence acknowledge visiting Dr. Holdsworth’s office in September.
[18] The defendant’s evidence is that he authorized her raises in salary – “not in recognition of her workload or performance, but in the interest of retention”. He says that in late 2010 or early 2011, his new accountant told him that the previous accountant had been paying the plaintiff $40,000 as net income rather than as gross income. During his evidence, he explained that when he was writing the salary cheques to the plaintiff, he believed that he was giving her gross salary. Later while writing a cheque to the CRA, he learned from his accountant that a portion of the income tax was on account of the plaintiff. He apparently thought she was responsible for paying her own income tax. He says his handwritten note is a record of his meeting with his new accountant.
[19] The defendant’s complaints of the plaintiff’s performance up to October, 2010, included booking a lot of patients in the morning, making him very busy and then by the time he was finished, she had left. He said she often left patients in the waiting room unattended after she left. On Tuesdays and Thursdays, the plaintiff would book too many patients when on those days, he wanted shorter days. He complained that after overbooking him all week, she would not book enough on Fridays. He said the plaintiff’s filing was very sloppy since the papers were put in on pins and he found it hard to realign the papers. He said that his letter of October 21, 2010 was to document his complaints.
[20] The defendant’s letter of October 21, 2010 gave the plaintiff eight weeks notice that her salary was being reduced. The defendant also listed a number of complaints about her performance, attendance, and had given her verbal reprimands. In October, 2010, the defendant arranged for his wife to become the office administrator. In February, the defendant sent the plaintiff a letter giving her eight weeks notice of her reduction in salary to $40,000.
[21] The defendant said that 19 weeks later, the plaintiff’s performance did not improve, and more importantly she had not accepted the reduction of salary; and he terminated her with eight weeks working notice.
Analysis
[22] Termination for cause has been described as the capital punishment of employment law. The authorities make it clear that an employer must establish that the misconduct is serious, that the misconduct must amount to a repudiation of the contract, and that the acts demonstrate an intention not to be bound by the contract of employment. Dismissal is an extreme measure, and must not be resorted to in trifling cases in order to terminate an employee for cause.”Only the most severe misconduct can justify” dismissal for cause. (Carscallen v FRI Corp. [2005] O.J No. 2400@para 72 and 79. [2005] O.T.C. 484 (the late Echlin, J.). The grounds for dismissal must be considered using a contextual approach. (Daley v Depco, [2004] O.J. No. 2675, [2004] O.T.C. 526 @para 37).
[23] A significant arbitrary reduction in salary is a form of constructive dismissal entitling an employee to damages in lieu of notice.
[24] I have a good deal of difficulty with the defendant’s evidence. There is no written evidence of any discipline of the plaintiff prior to October, 2010. The Plaintiff’s evidence of informal discipline prior to October, 2010 consisted of general statements concerning the defendant’s unsatisfactory performance- which the plaintiff denies. No specific dates or details were noted. What we do know is that he knowingly gave the defendant increases up to 2010 for what he says was for her retention- not her performance. He said in evidence that whenever she asked for an increase he gave it to her. Why would one give significant increases to an employee that one wants to retain but whose performance becomes grounds for dismissal for cause. The defendant acknowledged that he approved her salary increases but then said it was his accountant’s fault that she was getting too much. He then arbitrarily made a very significant cut to her income. All of this after she had worked for him for 12 years. Finally, after terminating her employment, he completed the Record of Employment and misstated that she had “QUIT”. In large letters where the defendant signed it states that it is an offence to make a false statement. The defendant in evidence was very unclear about what his intention was. He admitted that his termination letter gave the plaintiff 8 weeks working notice, but then said he expected that she would return to talk to him about her job – this after the angst and distress in the office followed by her doctor certified medical leave.
[25] Even his working notice of eight weeks he blamed on someone else by saying that he received advice from the Ministry of Labour to do that. And then complained that she went off on medical leave- presumably taking his 8 weeks pay with her. One would have thought that a physician would have had a better understanding of how a 46 year old woman would react to being fired after 19 years of uninterrupted employment in the same job.
[26] I accept the plaintiff’s evidence that the work place environment changed in October, 2010 when the defendant’s new wife took over running the office. I accept her evidence that the first notice she received of concerns about her performance was October 21, 2010. These were general complaints. The evidence concerning what performance criteria had not been met in the 19 weeks after the defendant’s letter of October 21, 2010 is not helpful. There were no detailed specific items. The defendant’s position is that the plaintiff had not improved. The performance issues raised in the October 21, 2010 were never raised in any subsequent correspondence. The final letter of termination did not reference performance issues from the previous correspondence but raised new performance issues concerning: her failure to register patients, using MDcaller, having another part time job (in the past), taking sick leave for a month, and importantly – “You have been abusing tremendously my good will and finances.....In addition, you are clearly refusing the adjustment on your salary.” I find that what was at the heart of the defendant’s concern was that he had been told he was overpaying the plaintiff; and he couldn’t get her to verbally accept a reduction in salary. That does not constitute grounds for dismissal for cause. The defendant in his own evidence seemed confused. He admitted completing the plaintiff’s record of employment that the plaintiff “QUIT”; and admitted that his termination letter stipulated that if the plaintiff committed an act justifying cause for dismissal that he would dismiss her peremptorily. That suggests that the defendant knew that if cause existed he had the right to dismiss her without notice, that cause did not exist, and that when he completed the record of service six weeks later in his mind, he had not dismissed her for cause. There is simply insufficient evidence to enable me to find that there were grounds for termination for cause for the defendant’s performance complaints. It is ironic, that the defendant believed the plaintiff had been taking advantage of him when she was his only employee; and he now has his wife as office manager plus a medical secretary to do what she was doing alone at the time for some 10 years.
[27] There is an argument, although not advanced, that the arbitrary reduction in the plaintiff’s salary constituted constructive dismissal entitling her to damages as of February 16, 2011, the date of the letter to her. It is noteworthy that by April 11 when the new salary rate was to take effect, she had already been terminated for cause. On the basis of the defendant’s letter of October 21, 2010, I am satisfied that a strong argument exists, even though not advanced, that the significant changes in vacation, sick leave, and working conditions stipulated by the defendant were punitive, and may even have amounted to constructive dismissal at that time. There was no justification for the bullying and intimidating tone of the letter to the plaintiff - a 12 year employee.
[28] Having found that there were insufficient grounds for termination for cause, I must consider the appropriate damages or notice period. I accept the plaintiff’s evidence that Dr. Holdsworth told her she was leaving her practice and that the defendant would call her. If that had been otherwise, the plaintiff would have been entitled to a termination allowance from Dr. Holdsworth. I don’t accept the defendant’s evidence that he thought the plaintiff was unemployed in October 1998. He knew that she been working at the clinic. He saw her there. He would have known that she knew the patients and that she was running the office. In fact he retained another employee, Ms. Grant as well, and then terminated her employment. I accept that the plaintiff believed that her employment was being continued. She was in the same job, in the same office, doing the same work. However she would not have known the arrangements, if any, between the defendant and Dr Holdsworth.
[29] I find that the defendant took over Dr. Holdsworth’s office, her patients and equipment. But for him, this was a new office with a new lease. There were no contractual arrangements with Dr. Holdsworth. She left and the defendant moved in. I am not satisfied that there is sufficient evidence to permit me to find that the defendant must be taken to have assumed Dr. Holdsworth’s obligations to the plaintiff. It is unfortunate for the plaintiff because she was likely entitled to a termination or severance allowance from Dr. Holdsworth. For the purpose of calculating the plaintiff’s length of service, I take it to have commenced October, 1998- a period of 12 ½ years.
[30] The authorities provided by the parties concerning notice periods for a clerical or secretarial position of a long standing employee show them to be generally in the range of seven to fourteen months. In determining the appropriate notice period, the following factors are relevant: the plaintiff’s age; her level of responsibility and the nature of the employment; availability of suitable employment; and her training, experience and qualifications. This plaintiff is a 46 year old woman who had worked for 20 years as a medical secretary. This is not low level unskilled work, but required that she have complete knowledge of billing codes, knowledge of the patients, skills that enabled her to deal effectively with patients and other professionals, a thorough knowledge of community health resources and some medical diagnosis skills to enable her to make appointments and recommendations to patients. She worked alone and without supervision for some 20 years. She would have difficulty finding a similar job unless a physician or hospital had an opening. . In fact she tried and failed to find a job in other secretarial or clerical work – and turned to real estate. Starting a new career was a courageous move on her part. However, I am satisfied that she was unable to find suitable alternative employment. It is well known that jobs in the Cornwall area are hard to come by. I don’t accept that the plaintiff failed to mitigate her damages.
[31] I am not persuaded that the plaintiff’s notice period or damages should be enhanced to take into account her treatment at the time of her dismissal as suggested by the plaintiff. No doubt the treatment of the plaintiff was deplorable. The atmosphere in the office became poisonous. The defendant’s letters are threatening and bullying. However, the only evidence of how the plaintiff was impacted was her medical note. It is of no assistance. It fails to even say why the plaintiff needed to be off work for four weeks. (Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] S.C.J. No. 40@ paras 58-60, 2008 SCC 39).
Conclusion
[32] Under all of the circumstances, I consider that a termination allowance or notice period of nine months to be appropriate. The plaintiff’s salary was $54,812.68 per annum less the 8 weeks she was paid at the time of her termination on March 4, 2011. I award the plaintiff judgement in the amount of $32,676.79 plus pre-judgement interest.
Costs
[33] Neither party filed a Form 57 costs outline at the completion of the trial. However the plaintiff filed one the day afterwards. If the parties are unable to agree on costs, they may make submissions within 14 days and a further 5 days for reply of not more than 2 pages addressed to my chambers in Ottawa.
Honourable Justice Timothy Ray
Released: March 21, 2012
COURT FILE NO.: 11-51488
DATE: 20120321
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BETWEEN:
MONIQUE DRAKE
Plaintiff
– and –
PETER BLACH
Defendant
REASONS FOR JUDGMENT
Honourable Justice Timothy Ray
Released: March 21, 2012