Chemical analyst wins severance after being fired for fabricating tests

Liebman v. Trafalgar Industries of Canada Ltd., 2004 CarswellOnt 610.

Marina Liebman worked for 13 years as a chemical analyst for Trafalgar Industries. She held a master’s degree in science and was in her 50s when she was terminated in December 2002. At that time she earned $30,500 per year. More than a year after being let go she found alternate employment at a lower salary.

Trafalgar Industries manufactures sterile pharmaceutical products. It has to comply with standards set by Health and Welfare Canada and is licensed for the manufacturing and testing it does.

Trafalgar claimed it was justified in dismissing Liebman because she was negligent and incompetent and had refused to follow testing, recording and reporting procedures.

A general manager testified she had been told by a co-worker of Liebman’s suspect practices.

Trafalgar set up an experiment that, it claimed, established Liebman was not performing the work she was supposed to. It then set up another experiment, confirmed by an independent laboratory and an expert witness, from which it concluded Liebman was not following procedures and was fabricating data.

Liebman said the different test results could be explained by the time difference between her tests and the other tests; that her tests were adequately done and approved by the quality control manager; and that she had been dismissed for a conflict with the general manager’s son.

Justice Pitt of the Ontario Superior Court of Justice did not rule on whether or not the tests had in fact been improper or fabricated, but decided it wasn’t necessary to do so in this case.

The general manager did not further question the co-worker when it first came up, and Trafalgar never recalled or ever considered recalling its products, he noted.

But he ruled that Trafalgar “genuinely and reasonably believed (Liebman) may have fabricated test results, thereby exposing the defendant to the risk of losing its license.”

This belief was reasonable and it justified dismissal, ruled Justice Pitt. The difficult question was whether in these circumstances dismissal was justified without salary for an employee with 13 years’ service. He said Liebman’s lack of regret or remorse, and her refusal to take responsibility for her actions “suggests the existence of some fundamental issues with (her) mental state.”

Trafalgar was not obligated to retain a dangerous employee, but it didn’t have to dismiss her without compensation. There were other options, such as suspension on the condition of seeking medical help or dismissal with some sort of salary in lieu of notice, he held.

The onus is on the defendant to prove that the dismissal was not wrongful. And on that issue “there are no half measures… It’s either wrongful or it’s not,” ruled Pitt. He found the dismissal of Liebman was legally wrongful, and he awarded her eight months’ salary in lieu of notice, or $20,232.

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