Company doesn’t blink in battle of wills with director

Director on important software project refused to accept performance improvement plan and wouldn’t come to work until demands were met

An Ontario company did not constructively dismiss an employee when it fired him after he disputed a performance improvement plan and refused to come in to work the Ontario Superior Court of Justice has ruled.

Crinu Iliescu, 53, was hired as a software quality assurance (QA) manager on Feb. 13, 2001, by Toronto-based VoiceGenie Technologies after leaving another company at the completion of a highway project. He signed an employment agreement providing for a six-month probationary term, benefits after three months and eligibility to participate in the company’s stock option plan after six months. He was also told he would be promoted in six months to a director position.

Iliescu’s employment went well in the early going and he received an exceptional rating at the end of his probationary period. He was appointed director of QA and given executive-level share options.

However, on April 29, 2002, Iliescu’s boss sent him an e-mail saying he and a major client on a new project had “not gotten off to a good start” and he “must evolve as the company evolves.” Iliescu took exception and didn’t report to work the next day. He remained at home until VoiceGenie’s president e-mailed him on May 1 to tell him to “stop fighting,” that he was a valuable employee and VoiceGenie hoped he would continue to contribute to the company.

Iliescu replied by listing five concerns he wanted addressed before he returned to work. VoiceGenie cut off his remote access to the computer system and his security card and Iliescu came in to meet with his bosses on May 2. The company set out a performance improvement plan (PIP) that outlined objectives he needed to meet.

Iliescu rejected parts of the PIP and said he would only return if he agreed to all of it and VoiceGenie addressed all of his concerns. If it didn’t, he said he would assume his employment had ended. He also accused his boss of trying to save money by not paying him. Iliescu said he could still work on the project, but “on my terms only.”

VoiceGenie told Iliescu the PIP was “not negotiable or subject to your approval.” It told him if he wasn’t resigning, he should report to work the next day. Iliescu didn’t show up and a few days later, on May 10, VoiceGenie sent him a letter confirming it was terminating him for insubordination and abandonment of his position.

Iliescu sued VoiceGenie for constructive dismissal two months later. He suspected the company hadn’t produced all of its documentation, so he accessed its computer network and downloaded several documents. VoiceGenie called the police, who arrested him and charged him with improper use of a computer. He was convicted and the charges were set aside by an appeal court. After the Crown opted to drop the charges rather than pursue a second trial, Iliescu added malicious prosecution to his suit against VoiceGenie.

The court found VoiceGenie was within its rights to expect Iliescu to follow the PIP it developed and it showed the company was willing to work things out with him so he could remain employed with it. In fact, the PIP complimented Iliescu’s performance and stated it believed the problems could be fixed.

“A PIP is a set of clear guidelines and goals given to an employee to meet, often as a result of some difficulty that has arisen with the employee’s performance,” the court said. “It did not make a fundamental or substantial change to the employment contract (nor) an intention to end the relationship.”

Iliescu’s rejection of the PIP was a rejection of VoiceGenie’s attempts to fix his performance and behavioural issues and save the employment relationship, the court found.

“It was simply not open to Mr. Iliescu, an employee, to reject the PIP outright,” the court said. “(The employment) relationship failed because this talented individual was unable to appreciate his proper role and his obligations to his employer.”

The court found Iliescu believed he was holding VoiceGenie “hostage” by not reporting to work during an important project and thought he could get his way. In this context, it said VoiceGenie was within its rights to cut off his remote access to protect its property. None of VoiceGenie’s actions could be considered constructive dismissal, it said.

The court also found there was no malicious prosecution since VoiceGenie merely informed police of Iliescu’s improper access to its data and the police laid the charges and pursued his conviction. It reasonably believed he broke the law and acted accordingly, the court said.

“(An employer) is entitled to treat an employee’s absence as a resignation or insubordination,” the court said. “Mr. Iliescu, while a talented performer, lost sight of who was entitled to ‘call the shots.’”

The court dismissed Iliescu’s suit and ordered Iliescu to pay VoiceGenie $60,157.59 in costs. See Iliescu v. Voicegenie Technologies Inc., 2009 CarswellOnt 76 (Ont. S.C.J.).

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