The recent B.C. Provincial Court decision of Linton v. Zokol, [2015] B.C.W.L.D. 3696 (decided April 20, 2015) is a good example of when Courts will permit just cause terminations due to insubordination (i.e. the employee failing to show up for work when they should have). Now, before I discuss this case, just keep in mind that I have discussed “just cause” terminations here (Part 1), here (Part 2), here (Part 3), and here (didn’t work in Ontario case of Partridge v. Botony Dental Corporation).
In this B.C. case, the relevant facts are that Dr. Deborah Zokol terminated her 69 year old receptionist (Shirley Linton) after she took unapproved holidays in February 2014. Now, in February 2013, Ms. Linton had a conversation with the office manager (Debra Harding) and told her that she planned on taking holidays in the next year, one if the spring and one in the fall (though no specific dates were given). Ms. Harding told Mrs. Linton to come back with specific dates. Mrs. Linton usually received her requested vacation days in the past and usually took her vacation when Dr. Zokol did. So Mrs. Linton made reservations in August 2013 for a holiday in Hawaii in February 2014 with her family. She did not mention the dates to the office manager at the time of making the reservations. In the late summer / early fall of 2013, the available dates for staff 2014 vacations were posted. And in November 2013, Ms. Harding mentioned to Mrs. Linton that there might be a problem with her vacation. Mrs. Linton did not discuss her planned time-off with Dr. Zokol until January 2014 (a month before the planned holiday). Dr. Zokol advised Mrs. Linton that she had never received notice of her upcoming vacation and that she could not take it because another employee had requested the same time off. Mrs. Linton insisted (through her lawyer) that she was going to take the vacation.
Mrs. Linton ultimately took her vacation and when she returned was terminated. She sent out some resumes but did not have any job offers (she said that no one would hire her for a few months, particularly given her age and plan to retire). Mrs. Linton sued for $14,856 for dismissal and $10,000 in aggravated damages and $10,000 in punitive damages (though these later two claims were later withdrawn).
At issue was whether Mrs. Linton dismissal was justified as a “without cause termination” (meaning: was it appropriate for Dr. Zokol to immediately terminate Mrs. Linton without providing her any additional notice or payment in lieu thereof)?
Here’s what the court wrote about law of just cause termination generally:
So did Mrs. Linton refusal to follow Dr. Zokol’s demand that she come into work on the days in question strike at the heart of the essential conditions of her contract of employment? Did it constitute wilful disobedience? The Court reviewed the facts, found that there was nothing arbitrary or unfair about the manner in which Dr. Zokol approved holidays for her staff, and concluded that the dismissal was justified. The Court wrote:
The case was dismissed and Dr. Zokol was entitled to recover reasonable expenses associated with the lawsuit.
So why is this case important for Ontario Dentists?
Well, given that this case involved a B.C. judge interpreting the common law (i.e. judge made law) in light of a particular factual context, and given that the Court relied upon important Supreme Court and English cases, it could be used to persuade an Ontario court on how to reach a decision when faced with a similar fact pattern. For dentist employers, to avoid landing in hot water, they should have a documented employee schedule (when it comes to vacation) and make sure it is posted / provided to employees well in advance, etc. For employees, they should realize that they have a duty not to be disobedient or insubordinate to their employer; their long years of service will not be a consideration when it comes to termination for just cause. And taking time off when you’re not supposed to was not, at least in this case, accidental.
Please note that the information provided herein is for educational purposes only and is not intended as legal advice. If you require legal advice, you should consult a lawyer.
