Thought it could temporarily lay off receptionist while on medical leave
A British Columbia dental clinic wrongfully dismissed a receptionist when it laid her off temporarily, but she should have accepted its offer to return once it learned of its obligations, the British Columbia Supreme Court has ruled.
Dawn Besse, 51, was a receptionist at a dental clinic in Hope, B.C., for 18 years. In September 2007, the clinic and its dental practice were purchased by Arthur Machner. The next month, Besse took a medical leave of absence for a necessary surgery. Her recovery time was originally estimated to be between three and six months.
Just before she went on leave, Besse claimed Machner asked her if she intended to return and told her she was entitled to severance pay from the previous owner. Besse found this unsettling as she intended to return to work.
After Machner took over, business at the clinic slowed down. Besse informed Machner she would be able to come back on Jan. 7, 2008, but Machner said business was slow and he wouldn’t need her until April. He later proposed Besse and the other receptionist split shifts, which the other receptionist was open to, but Besse refused this arrangement and said the more junior receptionist should have her schedule changed. Machner again mentioned severance pay from the previous owner and later commented he thought he would need to replace her in a few years because of her age.
Temporary dismissal for 12 weeks
On Jan. 14, 2008, after Machner asked for confirmation on Besse’s desire to return to work, he sent her a letter stating she was being temporarily laid off, for financial reasons, for 12 weeks and six days, and she could return to work in April. Machner later said he mistakenly assumed temporary layoff was allowed under employment standards legislation.
When Besse’s lawyer wrote Machner demanding damages in lieu of notice, Machner admitted his mistake and offered Besse her job back on Feb. 4. Besse refused the offer and said she had been wrongfully dismissed. On Feb. 19, Machner again said she was welcome back at the clinic, clarified he would pay her any lost wages from the layoff and said it “would be most unfortunate if she chooses to bring an end to or resign from her employment.” Besse didn’t consider his offer sincere.
Machner’s discussions and communication with Besse showed he never intended to terminate her employment and the layoff was purely for financial reasons, found the court. When he mentioned severance pay, it was because he was concerned over whether the obligation would be his or the previous owner’s if she left for good, said the court.
The layoff, whether mistaken or not, was a fundamental breach of the employment contract and constituted constructive dismissal, agreed the court. However, once Machner realized his error, his offer for Besse to return to work with full pay was in good faith, found the court, and he was trying to find a solution that was best for himself, Besse and the other receptionist.
The offer was an opportunity to mitigate Besse’s loss, which she declined, said the court. Besse failed to adequately look for other employment since there were other positions at dental clinics in the area to which she didn’t apply.
Besse was entitled to wrongful dismissal damages but only from the date of her layoff, Jan. 14, 2008, to Machner’s offer to return to work, on Feb. 19, 2008, ruled the court.
For more information, see Besse v. Dr. A.S. Machner Inc., 2009 CarswellBC 2588 (B.C. S.C.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that reports on employment law from a business perspective every two weeks. For more information, including a special introductory offer, visit employmentlawtoday.com.
