Dentist thought he could temporarily lay off receptionist while she was 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 was purchase 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.
On Jan. 14, 2008, after Machner asked for confirmation on her desire to return to work, Machner 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 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.
The court found Machner’s discussions and communication with Besse showed he never intended to terminate her employment and the layoff was purely for financial reasons. When he mentioned severance pay, the court believed it was because he was concerned over whether the obligation would be his or the previous owner’s if she left for good.
The court agreed with Besse that the layoff, whether mistaken or not, was a fundamental breach of the employment contract and constituted constructive dismissal. However, once Machner realized his error, his offer for Besse to return to work with full pay was in good faith, the court found, and he was trying to find a solution that was best for himself, Besse and the other receptionist. The court said the offer was an opportunity to mitigate her loss which she declined. It also found Besse failed to adequately look for other employment since there were other positions at dental clinics in the area for she didn’t apply.
The court ruled 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. See Besse v. Dr. A.S. Machner Inc., 2009 CarswellBC 2588 (B.C. S.C.).