Medical practice messes up secretary’s termination

Pay reduction and changes to employment conditions were followed by attempts to create just cause for dismissal
|employmentlawtoday.com|Last Updated: 07/31/2012

An Ontario doctor must pay a long-time medical secretary nine months’ notice after the Ontario Superior Court of Justice determined the secretary was both constructively and wrongfully dismissed.

Monique Drake, 46, was a medical secretary in a Cornwall, Ont., medical practice for almost 20 years — more than six years with another doctor followed by more than 12 years with Dr. Peter Blach, who took over the practice in 1998.

For most of Drake’s time working for Dr. Blach, the employment relationship was positive. However, in the fall of 2010, the office became tense when Dr. Blach’s new wife became involved in the running of the office. In February 2011, Drake was told she was overpaid due to an accounting error and given eight weeks’ notice that her annual salary would be reduced from more than $54,000 to $40,000. Other changes were made, including a reduction in her vacation allotment — preferred to be taken when Dr. Blach took his vacation — elimination of paid sick days, and no pay if the office was closed. The letter also raised a number of performance issues which had not been brought to Drake’s attention before.

On March 4, 2011, Drake received another letter from the doctor’s wife that listed several performance issues and stated she was refusing her salary adjustment. As a result, her employment was being terminated. Despite the performance issues listed, the office administrator gave Drake eight weeks’ working notice. At the end of her employment, Drake was issued a record of employment that stated she had quit.

The court found that the reduction in salary was a significant enough change to constitute constructive dismissal. The further changes in her vacation and sick days were also changes that, combined with the pay decrease, would warrant damages for constructive dismissal, said the court. However, since Drake was actually terminated, the wrongful dismissal claim took precedent.

Though Dr. Blach and his wife claimed several performance issues, first in late 2010 and then in her termination letter, there was no documentation that these issues were an ongoing concern and Drake had not been previously informed of them. The termination letter itself also included her refusal to accept the significant salary decrease with the other issues, which was not just cause for dismissal, said the court.

The court did disagree with Drake’s claim that her notice period should be tied to her total period of employment in the practice, including Dr. Blach’s successor. The court found that, though Dr. Blach took over the facilities and took on Drake as an employee, it was a new office and business for him. Drake’s employment with Blach’s successor effectively ended and Blach hired her when his practice started in the same location, said the court. Therefore, Drake’s service time was 12 years, not 19.

Dr. Blach was ordered to pay Drake nine months’ notice, minus the eight weeks he had already given her, for a total of $32,676.79.

For more information see:

Drake v. Blach, 2012 CarswellOnt 3495 (Ont. S.C.J.).

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