Employment & Labour

Wrongful dismissal, discrimination finding upheld by OCA

The Ontario Court of Appeal (OCA) has dismissed the appeal of an employer that was found to have wrongfully dismissed and discriminated against an employee in a case that sheds light on the issue of family status accommodation, says Toronto lawyer Michael Wright.

At trial, the employee in Partridge v. Botony Dental Corporation, 2015 ONSC 343 (CanLII) — represented by Wright and co-counsel Christopher Perri — was awarded more than $60,000 in both wrongful dismissal and human rights damages awards.

The dental clinic brought an appeal, arguing, among other things, the trial judge erred in concluding it did not have just cause to dismiss the employee.

But in its ruling, the OCA found, “The trial judge correctly applied the law and made no palpable or overriding errors.”

Wright’s client began her employment with the dental clinic in March 2004 as a hygienist, and in 2007, her role changed to office manager. On maternity leave in 2011, the woman was set to return to work in July and was told she’d be booked into the hygienist schedule. By changing her position, the woman alleged the clinic reduced her work hours, as well as the certainty of those hours.

After requesting to work during hours that did not conflict with her daycare arrangements, as she had previously, the woman was terminated.

At trial, she alleged by failing to provide reasonable notice or pay in lieu of notice, the company breached the terms of the employment agreement. It also discriminated against her by not reinstating her to her prior position, the woman alleged.

The clinic argued that the woman demanded her hours be altered, and when the request was denied, she “began to systematically harass management and other employees,” constituting lawful cause for dismissal.

Wright, of Wright Henry LLP, says he’s pleased with the findings from both the Superior Court of Justice and the OCA.

The case considered two different tests for determining discrimination due to family status — Johnstone v. Canada (Border Services), 2014 FCA 170, 372 D.L.R. (4th) 730 and SMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162, [2015] 8 W.W.R. 779 — with the plaintiff arguing that Alberta’s approach in SMS Equipment is preferred since it does not require that the employee prove she has self accommodated in order to establish a prima facie case for discrimination.

But the OCA left this issue open, concluding that no matter which framework is applied, the result of the trial judge’s analysis is the same.

"The court signalled in its decision that it is open to a further evaluation of the test for discrimination on the basis of family status, but given that it saw no need to interfere with the trial judge's findings it did not consider the issue in this appeal,” Wright tells AdvocateDaily.com.

Wright also notes that the decision should be required reading for all employers considering making allegations of cause that cannot be supported.

"As the costs endorsement by the trial judge shows, this employer will end up paying the plaintiff more than five times what she offered to settle for well in advance of trial."

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