Firing too harsh for worker’s unintentional violation of company policy, court rules

Worker thought she had covered her shift but didn't directly contact her supervisor as per company policy

A daycare worker who was fired for missing and switching shifts was a victim of wrongful dismissal, the British Columbia Supreme Court has ruled.

Rodica Cimpan was an early childhood educator at Kolumbia Inn Daycare Society (KIDS) from 1994 until her termination in late 2005. The executive- director had a positive view of her job performance, with the exception of three incidents where she did not show up for her shifts. Company policy was that employees who can’t make a shift must contact the executive-director in advance so arrangements can be made to cover the shift. It was also in the policy that employees who breached it were subject to discipline ranging from a verbal warning, then a written warning, up to suspension and dismissal.

The previous incidents took place in December 2002 and August 2005, both situations where when Cimpan left a message at KIDS in the evening to say she couldn’t make it for her next shift. Because she didn’t speak with the director in either case, arrangements weren’t made to cover the shift. This was considered a serious issue as staff -to-child ratios were very important. If the centre was short of staff, the safety of the children was compromised. Cimpan was suspended after the first incident and given a verbal warning after the second.

On Sept. 22, 2005, Cimpan’s supervisor told her she couldn’t take a previously arranged day off because the employee assigned to cover her shift couldn’t make it for the whole shift. Angry and “emotionally shaky,” Cimpan scheduled a doctor’s appointment for the next day. She called KIDS that evening and told another employee she couldn’t come in on time for her shift because of the appointment. That employee did not have authority and no arrangements were made to cover the shift. As a result, the staff ratio was considered dangerously low.

Cimpan brought a doctor’s note to the director stating she required a month of medical leave. The director responded by saying she would need medical clearance to return to work after that time. During Cimpan’s leave, the board of directors decided her breach of policy by not properly informing the director of her absence had the effect of “compromising the health and safety of the children and put the centre in breach of the ratio requirements.” The board elected to terminate Cimpan, effective Nov. 1, 2005.

The court acknowledged Cimpan’s earlier incidents did not factor into her termination. The first one was dealt with by a suspension and sufficient time had passed for it to be considered resolved. The second incident was considered minor and only warranted a verbal warning.

The court found Cimpan’s reason for being absent on Sept. 23, 2005 was legitimate as she was seeing her doctor for depression. The court found calling the centre the previous evening was sufficient notice. It felt Cimpan had reason to believe the other employee would relay the message to the director, so although she technically violated company policy, it was not on purpose and therefore not wilful insubordination.

The court ruled termination was too harsh a punishment for Cimpan. She was awarded nine months’ salary for reasonable notice.

“The real reason for termination at that time was a disbelief on the part of (the director) and perhaps the board of directors that Ms Cimpan was medically ill requiring a leave of absence,” the court said. “The medical information that had been provided to (the director) should have been accepted by the centre as valid.”

For more information see:

Cimpan v. Kolumbia Inn Daycare Society, 2006 CarswellBC 3037 (B.C. S.C.).

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