Employee with 26 years of service given less than four months' notice of office closing; employee awarded $50,000 in additional notice
An Ontario attorney must pay a long-term employee more than $50,000 in wrongful dismissal and aggravated damages after he decided to retire with three-and-a-half months notice rather than terminate her employment without cause.
Tina Armstrong was a legal secretary for Harold Lendon, an attorney in Owen Sound, Ont., since 1986. Her employment went smoothly until 2008, when there were some issues with her job performance. Armstrong began suffering stress and took two months off on doctor’s orders. Her doctor also supplied a note validating the leave.
Armstong also began feeling underappreciated and overworked. At one point she told Lendon if she didn’t get a raise she would resign with two weeks’ notice.
On July 11, 2012, Armstrong had an emotional outburst in the office. Lendon claimed she demanded a $5,000 bonus and a raise or she would quit on the spot. He said the outburst was so severe he was concerned about Armstrong’s health, but he felt he had no choice and agreed to pay the bonus and give her a raise. Armstrong denied asking for a specific amount but did request a bonus, which had been regularly paid in the past.
In August 2012, Armstrong called in sick several times, which Lendon testified put him under significant stress as it was during a time when he was close to four major deals. He considered terminating Armstrong’s employment, but felt that would be more stressful. Armstrong testified she suffered from pneumonia at the time and all her absences were due to that.
Ultimately, Lendon had had enough and he felt it was easiest if he just retired. On Sept. 4, he told Armstrong of his intention to retire on Dec. 31, 2012. He provided her with a positive letter of reference — that praised her “thorough competence,” her ability to deal with difficult clients, and determination to assist clients — as he felt with proper assistance she could become a good performer again. However, Armstrong became angry and cursed at him in the reception area where clients of a lawyer with whom they shared space were present.
Armstrong filed a claim for additional notice in June 2013 and Lendon asserted Armstrong’s behaviour provided just cause for dismissal.
The court found Lendon was prepared to “seriously mislead members of the Owen Sound legal community who might want to hire” Armstrong by providing a positive reference letter that ignored the issues he had with Armstrong over the past few years, which hurt his credibility.
“I also find it improbable, and do not accept his evidence, that (Lendon) was unaware that (Armstrong), a 26-year employee had any rights beyond an eight week statutory entitlement,” said the court. “That long service employees have a significant entitlement would be known to any intelligent person who read or watched the news.”
The court also noted that even if Armstrong was guilty of the alleged misconduct, it would not be sufficient to provide just cause.
“An emotional demand for a raise and a threat to quit do not amount to just cause after 26 years of service,” said the court. “An angry outburst on learning that you are being terminated on less than four months’ notice after 26 years of service, considered with the totality of the evidence, does not amount to just cause.”
In addition, Lendon testified that he thought the outburst was out of character and he was concerned about her psychological health. Since there was a question of whether Armstrong was culpable for her behaviour, this further weakened the just cause argument. It was also clear that Lendon decided to retire rather than dismiss Armstrong for just cause, and as a result owed her reasonable notice for such a long-term employee. As a result, Armstrong was wrongfully dismissed, said the court.
Lendon also submitted that the notice period should be reduced because he had modest earnings over the period of time he employed Armstrong. However, the court found “ability to pay is generally not a factor to be considered in assessing damages for breach of contract.”
