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Court finds that employer telling employee to “get out” constitutes dismissal

age-discrimination-workplaceTermination of an employment relationship can come in many forms; some apparent and some not so. In the latter case, it often falls to a court to determine whether an employer’s actions constitute dismissal or constructive dismissal. This was the issue faced by Justice Lack in the recent decision of Sweeting v Mok.

The facts

The facts of the case are fairly straight-forward and were not hotly disputed at trial. Ms. Sweeting, the Plaintiff, was the office manager and nurse for Dr. Mok, the Defendant. Dr. Mok operated a small, but busy, surgical practice in Peterborough and had employed Ms. Sweeting for 22 years. Ms. Sweeting earned $60,000.00 a year with six weeks vacation time, which the Court noted was “greater than she could hope to receive for similar employment elsewhere.

Tensions began to build in 2011 when the office secretary left and Ms. Sweeting took over her tasks in addition to her own. She became very busy, which led to Mrs. Mok, the Defendant’s wife and herself a nurse, assisting a few days a week. The tension only grew in June 2012 when Dr. Mok asked Ms. Sweeting to look into an electronic filing system, a task she did not have the time to do.

The tensions came to a head on June 20, 2012, when Dr. Mok and Ms. Sweeting got into a heated and Dr. Mok told Ms. Sweeting, “Go! Get out! I am so sick of coming into this office every day and looking at your ugly face.” Ms. Sweeting, hurt and in tears, left the office and did not return. She sued, claiming that Dr. Mok has fired her without cause. Dr. Mok defended, claiming that Ms. Sweeting simply quit her job.

The issues

Like most other dismissal cases, the issues in this case were:

  1. Whether Ms. Sweeting’s employment was terminated by Dr. Mok’s actions;
  2. Whether, in the alternative, Dr. Mok’s conduct constituted constructive dismissal;
  3. If so, what is the period of reasonable notice due to Ms. Sweeting;
  4. Whether Ms. Sweeting is entitled to aggravated or punitive damages.

The ruling

In the result, Justice Lack found that Ms. Sweeting did not quit her job. He found that, while he may not have intended to fire Ms. Sweeting, Dr. Mok did so when he told her to “Get out! I am so sick of coming into this office every day and looking at your ugly face.” In Justice Lack’s view, that is how any reasonable person would interpret those words spoken to a 22-year employee in a close, professional, work environment. He also found that Dr. Mok’s failure to contact her after or rectify any misunderstandings was demonstrative of his intent towards Ms. Sweeting.

Though he found that Dr. Mok had dismissed Ms. Sweeting, Justice Lack nonetheless considered whether Ms. Sweeting had been constructively dismissed. He found that the condescension, aggressiveness and personal insult with which Dr. Mok treated Ms. Sweeting made her continued employment intolerable if not impossible, and that the employment relationship had effectively been destroyed in that meeting. Thus he found that Dr. Mok’s actions also amounted to a constructive dismissal of Ms. Sweeting.

Having found that Ms. Sweeting was wrongfully dismissed, Justice Lack next considered the issue of damages. He found that pay in lieu of two years notice was appropriate, given Ms. Sweeting’s age, tenure of employment and the central role she played in Dr. Mok’s practice.

While he found that Ms. Sweeting was entitled to damages, Justice Lack declined to award punitive or aggravated damages. While Ms. Sweeting claimed that the manner of dismissal had caused her mental distress, there was no medical evidence before the court of such. As well, the Court did not agree that Dr. Mok’s behaviour was malicious and oppressive enough to warrant punitive damages.

The takeaway

The decision in Sweeting affirms that employers have an obligation to treat employees in a courteous and professional manner, an obligation that extends to their dismissal. Employers expose themselves to liability if they dismiss an employee in an aggressive or insulting manner. As well, employers have to be wary of conduct that could be seen by a reasonable observer as destroying an employment relationship, even if that is not the employer’s intent.

By Marty Rabinovitch and Ira Marcovitch, Student-at-Law

If you believe that you have been wrongfully dismissed or may be facing a wrongful dismissal claim, contact the experienced employment law lawyers at Devry Smith Frank LLP.

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Devry Smith Frank LLP

Employment and labour lawyers at Devry Smith Frank LLP
Devry Smith Frank LLP (DSF) is the largest full service law firm in Toronto outside of the downtown core. They offer a broad range of legal services to individual, business and corporate clients in most areas of corporate and personal law. Their firm’s employment law group covers a broad spectrum of HR law, including employment and labour law, occupational health & safety, human rights, workers’ compensation and much more.Lawyers at Devry Smith Frank LLP lead by Marty Rabinovitch B.A.H., LL.B. will be covering issues surrounding employment and labour law and human rights on First Reference Talks. They also provide training, seminars and conferences on the above topics. Read more .
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