Rash decisions can lead to wasted money
Employers need to understand that when an employee sues for wrongful dismissal, they are really just suing to say that given their years of service and their position, as well as their age, they should have received more pay in lieu of notice. Some employers, however, take this personally. They should not. It’s just business. Taking things personally usually leads employers to make rash decisions and waste money on lawyers. (Not that I think it is a waste.) Thin skinned employers usually just make a bad situation worse. Sometimes way worse.
Kelly had a grade 12 education and had completed some college level courses. She worked in the real estate business and in media marketing before she got a job with a call centre.
Kelly started as a telephone operator, was promoted to supervisor, then centre manager and finally was made director of marketing. After five and a half years she was terminated.
Her boss was closing down the call centre and she received a letter of termination. The letter told her that her pension premiums would be returned to her, provided her with a Record of Employment and asked her to return all company property.
Once the employer got a lawyer’s letter, the boss wrote to Kelly trying to confirm an arrangement alleged to have been discussed with Kelly whereby, although she had ceased being an employee, she was going to work on a freelance basis earning commission only to bring business in. When Kelly sued and this matter got before a judge, they claimed that it was not so much a termination but a mutually agreed cessation of Kelly’s employment status.
The judge found that if Kelly had transitioned her relationship to some sort of “fee for service” arrangement, the termination letter she got would have mentioned it. It did not.
Then the employer claimed that Kelly wasn’t really terminated, she was “laid off”. They were trying to say that the relationship wasn’t severed, they were just sending her home without work temporarily because of a shortage of work. Of course if that’s what all they were doing, they wouldn’t have cashed out her pension plan. That argument also received short shift from the judge.
Many months after Kelly had been terminated and had started a legal action for wrongful dismissal, the employer claimed to have discovered that Kelly had misappropriated funds. Small cash incentives were routinely handed out to call centre workers. If the employee quit before the incentive was paid, the cash envelope would be put in a “quit fund” and used to pay for pizza, donuts and popsicles for the staff to keep them motivated. It was part of Kelly’s job description to strengthen staff morale.
The employer, however, claimed that that policy had been changed in 2003 and Kelly ignored it. All the evidence, however, indicated that it had not been changed until 2006. The owner of the company sat before the judge and alleged that Kelly had actually stolen the money. The fact that he had no evidence whatsoever that Kelly had made personal use of the “quit fund” did not seem to deter him at all.
When an employer is making an allegation, it is up to them to prove it, not for the employee to disprove it. I am sure the employer’s lawyer told them that. But Kelly’s case is what happens when an ego has money and wants to give it to a lawyer. The judge in Kelly’s case was contemptuous of the employer’s reckless allegation that Kelly had stolen money.
The judge, in fact, found that the employer only did an audit of the “quit fund” well after Kelly started her lawsuit to try to scrape up any dirt on her they could.
A year after Kelly’s termination, while the lawsuit was under way, having finished this audit, the boss complained to the police about Kelly’s “theft” and alleged fraud and misappropriation of funds.
Fortunately, the police saw through it and after asking Kelly a few questions, as stressful as that was for her, let the matter drop.
Not to be deterred by the lack of interest expressed by the police and the boss’s allegations of theft, he then posted a message on the company website, 18 months after Kelly had started her lawsuit, soliciting former employees to come forth and provide information. It said that it wanted those former employees who may have been victims of a significant misappropriation of cash funds allegedly perpetrated by centre management prior to July 1, 2006 to come forth and tell their stories. Guess who was the centre manager before July 1, 2006?
Of course, at trial, the boss thought this was all okay since Kelly’s name was not mentioned and for part of the time there was a co-manager. The judge found that the purpose of the website posting was to disparage Kelly and to intimidate her into dropping her lawsuit. He found it reprehensible and egregious.
So where did all this end up? The judge awarded Kelly eight months lost wages, compensation for the bonus she would have received during that eight months and $50,000.00 in punitive damages as a result of the malicious behaviour of the employer. The judge’s decision was 40 pages long and detailed in its analysis. Translation…not appealable. Sometimes justice is very sweet.
As published in the Hamilton Spectator, November 29, 2010