Employee reprimands must clearly indicate the job is in jeopardy to avoid a finding of wrongful dismissal
After five years of employment with Majestech Corporation as an office manager, Marie-Josée Bois was terminated without notice in August 1999. In response Ms. Bois brought an action for wrongful dismissal claiming damages in the amount of $25,000.
For the first few years of her employment with Majestech, Ms. Bois enjoyed a good working relationship with her employer. The office was small with just three employees. Unfortunately, an incident occurred in August 1998 after which her relationship with her employer deteriorated.
Prior to August 1998 Ms. Bois had brought her two daughters to work occasionally when they had a day off from school or were on vacation. On each such occasion Ms. Bois had obtained the prior authorization of Alfred Guiness, the branch manager.
In August 1998 while Mr. Guiness was on vacation, Ms. Bois needed to bring her children to work as her husband was called away to work and no alternatives were available. Unfortunately, Ms. Bois did not have prior authorization from Mr. Guiness.
When Ms. Bois discussed the matter with the other employee, Mr. Asselstine, he contacted the head office in New York to discuss her request, which was the course of action suggested by Mr. Guiness to take during his absence. Ms. Bois became upset when she learned that Mr. Guiness had instructed Mr. Asselstine in this manner and when Mr. Guiness phoned in, Ms. Bois hung up the phone on him.
Relations deteriorated from then on. Upon his return, Mr. Guiness completed a disciplinary action report, indicating that he had given Ms. Bois a verbal warning for insubordination. Over the next year, additional notice of warnings were given to Ms. Bois for such things as leaving work early, not informing co-workers when she was leaving for lunch, her attitude and not forwarding messages to Mr. Guiness.
Problems came to a head at the end of May 1999. Ms. Bois went to work on a Thursday although she was not feeling well. During the course of the day, she felt worse and went home early. Prior to leaving, she attempted to contact Mr. Guiness who was not in the office but was not successful. She called the head office in New York to inform them of her early departure. From home, she contacted Mr. Guiness and informed him that she may not be in the next day. She agreed that she would call early if she was not going to be going to work.
The next day Ms. Bois was still not feeling well so she called in to the office at 8:20 a.m. to advise that she would not be going into work. Mr. Guiness was not there so a message was left for him. When Mr. Guiness arrived at work he called Ms. Bois at home. She was not available but returned his call shortly after 9 a.m. Mr. Guiness was very upset and questioned Ms. Bois as to whether she was going to see her doctor. When she said that she would not be seeing her doctor, Mr. Guiness questioned whether she was even sick. He told her not to come to work on the following Monday.
The next couple of months were particularly tense following these events. Ms. Bois began looking in the newspaper for other jobs. On one occasion, she found a listing for a job for her company. She was not sure whether it was meant to replace her or if it was an additional employee. When she questioned Mr. Guiness about this he assured her that it was meant for an additional employee.
At the end of August, after giving Ms. Bois three warning notices that month, Mr. Guiness terminated Ms. Bois. She was paid a severance of $5,680.
In response to the claim for wrongful dismissal brought by Ms. Bois, Majestech claimed that Ms. Bois was terminated because her job performance had deteriorated. She had been warned numerous times, both verbally and in writing. She was insubordinate and sullen.
The court did not accept the finding of just cause. Ms. Bois was not given sufficient warnings that specifically informed her that her job was in jeopardy as a result of her actions. The Court stated that it was insufficient that the employer was merely critical of her performance or urged improvement. None of the verbal or written warnings given to Ms. Bois specifically advised that her job would be in jeopardy if she did not improve.
As an alternative argument, Majestech argued that Ms. Bois’ actions constituted cumulative cause. Even though the Court accepted that Ms. Bois’ work performance, attitude and conduct were less than satisfactory during the last few months of her employment, it did not accept the argument that this was sufficient to terminate her without notice. For cumulative cause to be successful, the company would have been required to communicate to Ms. Bois its expectations of her, each infraction and the ramifications if she did not improve. This was not done.
As just cause was not made out, the Court awarded Ms. Bois damages for wrongful dismissal in the amount equivalent to five months as reasonable notice, less the severance payment already made.
For more information:
• Bois v. Majestech Corp. Canada, Ontario Superior Court of Justice, Docket No. 99-BN-5468, May 28/01.
For the first few years of her employment with Majestech, Ms. Bois enjoyed a good working relationship with her employer. The office was small with just three employees. Unfortunately, an incident occurred in August 1998 after which her relationship with her employer deteriorated.
Prior to August 1998 Ms. Bois had brought her two daughters to work occasionally when they had a day off from school or were on vacation. On each such occasion Ms. Bois had obtained the prior authorization of Alfred Guiness, the branch manager.
In August 1998 while Mr. Guiness was on vacation, Ms. Bois needed to bring her children to work as her husband was called away to work and no alternatives were available. Unfortunately, Ms. Bois did not have prior authorization from Mr. Guiness.
When Ms. Bois discussed the matter with the other employee, Mr. Asselstine, he contacted the head office in New York to discuss her request, which was the course of action suggested by Mr. Guiness to take during his absence. Ms. Bois became upset when she learned that Mr. Guiness had instructed Mr. Asselstine in this manner and when Mr. Guiness phoned in, Ms. Bois hung up the phone on him.
Relations deteriorated from then on. Upon his return, Mr. Guiness completed a disciplinary action report, indicating that he had given Ms. Bois a verbal warning for insubordination. Over the next year, additional notice of warnings were given to Ms. Bois for such things as leaving work early, not informing co-workers when she was leaving for lunch, her attitude and not forwarding messages to Mr. Guiness.
Problems came to a head at the end of May 1999. Ms. Bois went to work on a Thursday although she was not feeling well. During the course of the day, she felt worse and went home early. Prior to leaving, she attempted to contact Mr. Guiness who was not in the office but was not successful. She called the head office in New York to inform them of her early departure. From home, she contacted Mr. Guiness and informed him that she may not be in the next day. She agreed that she would call early if she was not going to be going to work.
The next day Ms. Bois was still not feeling well so she called in to the office at 8:20 a.m. to advise that she would not be going into work. Mr. Guiness was not there so a message was left for him. When Mr. Guiness arrived at work he called Ms. Bois at home. She was not available but returned his call shortly after 9 a.m. Mr. Guiness was very upset and questioned Ms. Bois as to whether she was going to see her doctor. When she said that she would not be seeing her doctor, Mr. Guiness questioned whether she was even sick. He told her not to come to work on the following Monday.
The next couple of months were particularly tense following these events. Ms. Bois began looking in the newspaper for other jobs. On one occasion, she found a listing for a job for her company. She was not sure whether it was meant to replace her or if it was an additional employee. When she questioned Mr. Guiness about this he assured her that it was meant for an additional employee.
At the end of August, after giving Ms. Bois three warning notices that month, Mr. Guiness terminated Ms. Bois. She was paid a severance of $5,680.
In response to the claim for wrongful dismissal brought by Ms. Bois, Majestech claimed that Ms. Bois was terminated because her job performance had deteriorated. She had been warned numerous times, both verbally and in writing. She was insubordinate and sullen.
The court did not accept the finding of just cause. Ms. Bois was not given sufficient warnings that specifically informed her that her job was in jeopardy as a result of her actions. The Court stated that it was insufficient that the employer was merely critical of her performance or urged improvement. None of the verbal or written warnings given to Ms. Bois specifically advised that her job would be in jeopardy if she did not improve.
As an alternative argument, Majestech argued that Ms. Bois’ actions constituted cumulative cause. Even though the Court accepted that Ms. Bois’ work performance, attitude and conduct were less than satisfactory during the last few months of her employment, it did not accept the argument that this was sufficient to terminate her without notice. For cumulative cause to be successful, the company would have been required to communicate to Ms. Bois its expectations of her, each infraction and the ramifications if she did not improve. This was not done.
As just cause was not made out, the Court awarded Ms. Bois damages for wrongful dismissal in the amount equivalent to five months as reasonable notice, less the severance payment already made.
For more information:
• Bois v. Majestech Corp. Canada, Ontario Superior Court of Justice, Docket No. 99-BN-5468, May 28/01.
