Squeaky wheel gets released

British Columbia worker didn’t resign but ‘disrespectful accusations’ of boss to upper management damaged the employment relationship

The British Columbia Supreme Court has given notice that employers may be able to fire workers who cross the line in criticizing their boss, upholding the termination of a worker who complained about her boss to higher-ups.

Upset following an angry confrontation with her boss, Maria Van Der Meij wrote a letter to her employer’s board of directors in which she criticized her boss and bemoaned the fact she could no longer perform in her role. However, instead of simply authoring a letter of complaint, she authored her own legal misfortune.

For nine years, Van Der Meij worked as a settlement coordinator and supervisor at the Victoria Immigrant and Refugee Centre Society. Burdened by a heavy caseload and plagued with funding shortfalls, employees were stressed and overwhelmed, and tensions often ran high.

When the errors of one of her staff mounted, Van Der Meij met with the centre’s executive director, Carlos Gaete, to deal with the problem. However, the two clashed about the appropriate discipline. Believing Gaete acted improperly during the meeting and finding the stress had finally taken a toll on her health, Van Der Meij left the office and went to see her doctor.

While on sick leave, Van Der Meij wrote to the centre’s board of directors, accusing Gaete of lacking leadership and ethical standards. She said he was unappreciative and cowardly, making it impossible to do her job. Her letter concluded by stating she felt “compromised in every regard” by his actions.

Instead of dealing with the merits of her grievances, the board swiftly responded by accepting what it claimed was Van Der Meij’s resignation. It argued if she was unable to continue on in her role, she had effectively resigned from her employment. But Van Der Meij had not intended to resign, so they next met in court.

The centre argued if Van Der Meij had not resigned then, at the least, her letter was improper and she had jeopardized her continued employment.

The British Columbia Supreme Court rejected the centre’s argument that Van Der Meij had resigned based on the letter she wrote to the board. Without clear evidence of a resignation, courts should be reluctant to infer an employee intended to resign, the court said. However, the centre was correct in concluding that by spitefully criticizing her boss, Van Der Meij made the employment relationship impossible to continue. In those circumstances, the centre was at liberty to terminate her for cause, without further obligation.

While the court accepted employees are generally “entitled to criticize superiors without fear of immediate dismissal,” when such criticism undermines the employment relationship and renders it “impossible for the employee and manager to continue working together,” an employer is not required to tolerate it and may be able to terminate the employee for cause.

While Van Der Meij’s complaints may have been justified, her approach to voicing them was fatal to her job. Had she attempted to resolve the issue without first writing to the board, she might have received a more favourable settlement.

What can employers take from this case?

Resignations will only be inferred by courts in the clearest of cases. In Lelievre v. Commerce and Industry Insurance Company of Canada and Robinson v. Team Cooperheat-MQS Canada Inc., the courts clearly signalled that, without an express statement the employee resigned or actions which indicate an intention to leave the workplace, employers should not be so quick to jump at the opportunity to claim an employee resigned. Employers faced with a potential resignation should give the employee time to consider her actions and ask her to confirm her intentions in writing.

An employee’s complaint about a supervisor can sometimes lead to cause for dismissal. According to the court in Van Der Meij, when an employee’s criticism is provoked by unreasonable conduct or the complaint is reasonably justified on the facts, the employer is at liberty to dismiss an employee — but not for cause. However, where criticism is disrespectful or otherwise incompatible with continued employment, regardless of whether it is justified, employers can take the position there is cause for dismissal. As usual, the success of that argument will be based on the specific facts of the case.

For more information see:

Van Der Meij v. Victoria Immigrant & Refugee Centre Society, 2008 CarswellBC 1516 (B.C. S.C.).

Lelievre v. Commerce & Industry Insurance Company of Canada, 2007 CarswellBC 392 (B.C. S.C. [In Chambers]).

Robinson v. Team Cooperheat-MQS Canada Inc., 2008 CarswellAlta 944 (Alta. Q.B.).

Daniel A. Lublin is an employment lawyer in Toronto focusing on the law of dismissal. He can be reached at (416) 640-1583 or www.toronto-employmentlawyer.com.

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