Dental assistant’s tenure with previous employer counts

A court has ruled that a dental assistant has to be given credit for the 24 years she worked for a previous dentist, after the practice was bought and her employment was terminated

A court has ruled that a dental assistant has to be given credit for the 24 years she worked for a previous dentist, after the practice was bought and her employment was terminated.

Judy Perkins worked for James Armstrong from 1982 until 2003, when he sold his practice to Donald Shuen. In the new office Perkins had much the same duties as before. But the days of her four-day workweek were changed, she no longer ordered supplies, and she didn’t do bank deposits. She received fewer days off over Christmas and received lower vacation pay. Shuen told her it was because she’d not yet been employed by him for a full year.

In February 2005 her employment was terminated and Perkins filed a wrongful dismissal action seeking 18 months’ notice, including the time she’d spent with Armstrong.

Shuen argued Armstrong’s office was an insolvent business at the time he took it over, so Perkins was not entitled to that time. He said Armstrong had expressly terminated Perkins’s employment before he took over the business and that, since her duties had changed, she was a new employee of his business.

The British Columbia Supreme Court sided with Perkins. When a business is taken over as a going concern then there is an implied understanding employees are given credit for years of past service. This is so unless the new buyer expressly negates the implied term, and the court said Shuen had not done so.

The court disagreed with Shuen’s claim the dental office was no longer a going concern. It had numerous patients Shuen hoped to acquire for his practice. This is reflected in the proportion of the sale price allocated to goodwill, in the manner in which Armstrong’s patients were informed of the change and in Shuen having Armstrong work as an associate in the new office, said the court.

The court also rejected Shuen’s argument that Perkins had in effect been made a new employee. Her new duties were not identical to her former duties, but they were very similar and of the same character, it said.

There was no evidence Armstrong had ever expressly terminated Perkins’s employment and Perkins would have been entitled to reasonable notice whether or not she was expressly dismissed, concluded the court. Perkins was 54 when she was terminated, and had not been able to find alternate work. The court awarded her $42,000 for 12 months’ notice.

For more information see:

Perkins v. Shuen, 2006 CarswellBC 162 (B.C. S.C.)

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