Facts Not in Dispute

At the time of trial, Plaintiff was 39 years of age. She is a dental hygienist by education and training. Plaintiff began her employment with Defendant in March, 2004. There was no written employment contract. Her employment was terminated on July 19, 2011, making her term of employment seven years and four months in length. During that time she had two maternity leaves. The first ran from June, 2007 to July, 2008, and the second from June, 2010 to July, 2011.

Plaintiff was initially hired by Defendant as a dental hygienist. In 2007, her role changed to that of office manager. The parties are not in agreement as to the date on which Plaintiff assumed the position of office manager; Plaintiff's evidence was that it occurred in March, 2007, and her former employer's evidence was that it occurred in October, 2008. This issue will be revisited later.

Defendant's sole director, officer and shareholder is Balbinder ("Bo") Jauhal. In 2002, Defendant opened the dental office at which Plaintiff came to work two years later, called Big Bay Point Dentistry. Jauhal was not consistently at the premises, as a result of operating other practices in other locations. She typically came to Big Bay Point Dentistry twice per week, for the morning. There were no written office policies or procedures.

As the office manager, Plaintiff was responsible for the general operations of the practice, including managing patient bookings and staff schedules, answering phones, pursuing bad accounts, advertising for the practice, collecting and paying bills by cheque or corporate credit card (although Jauhal would sign the cheques), running advertisements for staff, interviewing, hiring and firing employees in collaboration with Jauhal, with Jauhal having the final decision, training staff, and dealing with maintenance issues.

At the time of Plaintiff's termination, the office hours of Big Bay Point Dentistry were Monday to Tuesday 10 a.m. to 8 p.m., Friday 8 a.m. to 4 p.m., and Saturday 9 a.m. to 4 p.m.. The hygienists typically started at 10 a.m. The hygienists' hours were Monday to Thursday 10 a.m. until 8 p.m., and Friday and Saturday 9 a.m. to 4 p.m.. Between her date of hire as a hygienist and the day that she was given the position of office manager, Plaintiff's work hours were 10 a.m. to 6 p.m., Tuesday to Friday. She earned $35 per hour as a hygienist. There was no guaranteed minimum number of hours; they ranged from 20 to 35 hours per week. As a hygienist, she was only paid for the hours spent working on patient care. Once she accepted the management position, Plaintiff's hours changed to 9 a.m. to 5 p.m., although there is a dispute over the extent to which her actual hours fluctuated weekly within those set hours. She continued to work four days per week, Tuesday to Friday. While the hygienists were required to take an unpaid lunch break, as the office manager, Plaintiff worked through her lunch hours and was paid for that time. As an office manager, Plaintiff's rate of pay was $41 per hour. In 2009, which year was uninterrupted by a maternity leave, her total earnings from Defendant were $70,100.

Prior to her return to work in July, 2011 following her last maternity leave, Jauhal told Plaintiff by way of text messaging that she was "booking her into the hygienist schedule with patients booked Tuesday 8-3, Wednesday 8-3, Thursday 9-3, Friday 8-3". Thereafter began a series of events and interactions between Plaintiff and Jauhal that culminated in Plaintiff being fired on July 19, 2011.

At the time of Plaintiff's dismissal, Jauhal provided Plaintiff with a cheque for a severance payment in the sum of $7,605.50, indicating on the Record of Employment that it was representative of seven weeks' pay. Under the section of that document entitled "comments", Jauhal wrote as follows: *did not return to work on agreed date after end of maternity leave

1. Taking day sheets - personal patient information

2. Falsifying hours worked. Leaving at 3:15 signing out at 4:00 p.m.

3. Demanding to work thru (sic) lunch. Demanding to work hours not available.

* Wilful neglect

Plaintiff received this Record of Employment and severance cheque at the meeting during which she was terminated. Plaintiff returned the cheque to Jauhal that same day.

Jauhal testified that she amended the Record of Employment six days later so that the comment section then read:

1. Did not return to work on agreed date

2. Falsifying hours worked

3. Demanding to work thru (sic) lunch

4. Demanding to work hours not available

5. Taking home day sheets with personal patient information. Demonstrating wilful misconduct, disobedience, wilful neglect of duties.

During Plaintiff's time as manager, and at her termination, there were approximately 10 employees working at Big Bay Point Dentistry. One of the primary dental hygienists was Jillian Caswell. Another hygienist was Meghan Johnston. Kristine Hubble was a dental assistant, as was Katie Ryckman. Cathy Petrie worked at the front reception desk. These latter two individuals, as well as Jillian Caswell, continue to be employed by Defendant and testified as witnesses.

The dentistry office produced day sheets on a daily basis, which were kept in each operatory. The practice of each employee varied; the day sheets were either posted on a wall behind the patients while treatment was being given, or on the inside of a cabinet door. They contained the patient's full name, treatment to be performed, and patient medical alerts, if necessary. They contained information for approximately 40 patients each day. They were shredded at the end of each day to maintain patient confidentiality.

The computer software used by Defendant permitted the tracking of patient information such as patient names, contact information and scheduling details, as well as business financial reports. When she became the manager, Plaintiff was the only employee to know the secondary password to the system, which allowed access to all of the same information that was accessible to Jauhal. She was also given the code for the office safe, and the keys to the filing cabinet and the office itself. Documents such as resumes, employee reviews, and supplier information and statements were kept in the filing cabinet.

A term of working for Defendant was that patient confidentiality was to be maintained by the employees.

Allegations of Each Party

Plaintiff alleged that she was promoted to the position of office manager in March, 2007, and that it was therefore a position that she held for three years and four months. Prior to her return from her second maternity leave, Jauhal advised her that her position as office manager was no longer available, and forced her to assume her former job as a hygienist.

In doing so, Jauhal reduced Plaintiff's work hours, as well as the certainty of those hours. Plaintiff alleged that when she attempted to assert her right to be reinstated to her previous position and working conditions, Jauhal responded by way of reprisal. Jauhal insisted that Plaintiff work during hours that she had not worked prior to her maternity leave, including times that knowingly conflicted with Plaintiff's daycare arrangements. Met with further insistence from Plaintiff that she be reinstated on more favorable terms than were being offered, Jauhal terminated her. The plaintiff alleges that by express or implied term of the employment agreement, her employment could only be terminated on reasonable notice or pay in lieu of notice. By failing to provide either, Plaintiff alleged that Defendant breached those terms. Plaintiff also alleged that the refusal by Defendant to reinstate her to her prior position was discriminatory, and a breach of the Ontario Human Rights Code, R.S.O. 1990, c. H and a breach of the Employment Standards Act, 2000, S.O. 2000, c. H. Further, being terminated after asserting her right to reinstatement amounted to a reprisal, and was another contravention of a legislated employment standard.

Defendant alleged that while it was able to reinstate Plaintiff to the position of office manager, and that the position remained open for her during her maternity leave, it was Plaintiff who requested that she assume her former role as a hygienist. She then demanded that Jauhal change the ordinary business hours of the dental practice by changing regular opening times from 10 a.m., to 8 a.m.. As a result of Defendant's refusal to alter the hours, Plaintiff began to systematically harass management and other employees. It was alleged by Defendant that such misconduct and office disruption constituted lawful cause for dismissal.

There were two additional grounds advanced by Defendant as cause for terminating Plaintiff's employment. The first is an allegation that, in conjunction with an intention to set up a competitive dental practice in the same area, Plaintiff secretly copied and removed confidential and proprietary patient records and information from Defendant. The second is that Plaintiff contacted, solicited and procured other dental hygienists employed by Defendant for the purpose of having them join her new business. It is alleged that in using this proprietary and confidential patient information to her own benefit, Plaintiff caused Defendant to suffer damages through lost revenue and decreased resale value. The claim for diminished business value was not pursued at trial. The claim for lost revenue was pursued, but was lowered from $200,000 to $25,000.

Issues:

1)Decide if this is a case of "wrongful dismissal" or, alternatively, if the employment was terminated with "just cause." Explain your decision referencing materials in Learning Outcome 7.

2)When the plaintiff stopped her work as the Office Manager, who should the defendant have informed regarding the end of the plaintiff's authority to act as the defendant's agent? Why would it be important to the plaintiff to inform these people that the defendant no longer had this authority?

3)If the judge finds sufficient evidence that the plaintiff has taken client files home intending to use this information to support her new business, what remedy could the defendant seek in connection with this breach?

4)Could the plaintiff be accountable if she lured the defendant's hygienists to leave the defendant and come work for her?