In the recent case of Van Wyngaarden v Thumper Massager Inc., the Ontario Divisional Court confirmed that unless a dismissal is in bad faith, an employer is entitled to dismiss an employee during the probationary period without cause and without notice.
Employers often wonder, “what’s the worst that could happen?”
The recent case of Acumen Law v Ojanen is a good demonstration. Melissa Ojanen was an articling student with the Acumen Law firm when things went horribly wrong. Her troubles began when she had a drunken argument with a coworker at an office party. The next day, the head of the firm harshly reprimanded her and asked her to immediately leave the office. Over the next few weeks, the firm slowly revoked her privileges and asked her only to complete menial tasks; then they found her blog and terminated her employment.
The Vancouver-based firm, which specializes in “driving law”, accused Melissa of stealing confidential information and sharing it on a Blog that was designed to compete with theirs. They made this allegation despite finding that any legal inquiries received by the blog were referred to the firm itself.
The firm then terminated her employment while simultaneously serving her with a civil suit in front of all of her colleagues and her entire articling class. She counterclaimed for wrongful dismissal, and the firm alleged that the termination was for just cause, making baseless claims about Melissa’s refusal to accept responsibility and her inability to practice law.
As a result of the lawsuit, Melissa was unable to find an alternate articling position, was not called to the Bar and subsequently became homeless for three months before moving back in with her parents. In court, her former employer used sexist stereotypes in an attempt to slander Melissa’s conduct and further injure her career.
Let This Be A Lesson
Luckily, Melissa was successful in court and received the balance owed by Acumen for the remainder of her articles as well as $50,000 in aggravated damages for the emotional distress caused by the incessant bullying and harassment she had undergone.
The agreement to article was effectively treated as a fixed-term contract. Cancelling these positions can result in a breach of contract as there is no basic right for an employer to cancel, delay or alter an existing contract. Damages resulting from such contracts are liquidated damages instead of “notice” damages. This means that they are not subject to the duty to mitigate and any income the employee receives during this time is not deductible from the damages found. It is likely that, if the termination is found to be without just cause, employees would receive the balance owed for the remainder of the fixed-term contract.
In this case, the reason that the aggravated damages were so high is due to the bad faith conduct on the part of Acumen law, in addition to the excessive emotional damage suffered by Ms. Ojanen as a result of her dismissal. The court focused on the unfounded allegations of dishonesty and deceit made by her employer. When the primary lawyer found Melissa’s blog, he refused to hear her explanation and jumped to conclusions about her intentions. He terminated her employment and served her with a civil suit in front of the entire office, despite knowing that she lived just a few blocks away. His conduct was harsh and malicious throughout, an attitude that courts do not take kindly to. The court recognized that Ms. Ojanen was in a vulnerable position as she had moved to Vancouver for this job and was a young articling student. Given the harsh climate in which many articling students work, this vulnerability was taken into account.
The consequences of Melissa’s termination were also particularly harsh. She attributes the breakdown of her marriage and her inability to find employment directly to the incidents at Acumen Law. Given his civil claim, she was forced to disclose to potential employers that she had trespass and theft charges against her, making it very difficult to secure employment. As a result, she was unable to find a job for the 3 years between her termination and this case reaching the Supreme Court of British Columbia. As legal proceedings are quite expensive, she soon found herself living out of her car before she eventually moved in with her parents in Ontario. She represented herself throughout most of the proceedings and still managed to succeed against a powerful law firm.
It is important to note that cases such as these are not unique to articling students or even to the legal profession. Terminating someone without evidence of just cause always leaves the possibility of adverse consequences for the employer. Regardless of the position of employees in a company’s hierarchy, there is an implicit understanding that they must be treated with dignity and respect. Therefore, it is always best to conduct thorough investigations into employee misconduct before rushing to judgment and landing everyone in hot water.
Dismissals can be extremely complicated and it can be difficult to know what your rights are.
Getting it wrong can cost an employer dearly; in this case, it would have been far less expensive to simply allow the Plaintiff to complete her articles. Instead, the Defendant paid a substantial amount of money in damages, not to mention legal fees and, of course, negative publicity.
Employers who suspect misconduct should obtain advice from an Employment Lawyer before taking action. And an employee that has lost their job, particularly based on allegations of cause or in egregious circumstances, should find out how to protect their rights.
Our team is always available to give you the advice you need. Feel free to contact us.