Senior B.C. health worker fired without cause, explanation

B.C. Supreme Court critical of way termination was handled, awards 55-year-old director the maximum allowed under public-sector law

The British Columbia Supreme Court has awarded a former director of the Vancouver Coastal Health Authority (VCHA) the maximum amount of reasonable notice it could under law after she was dismissed without cause and without explanation.

Justice James Taylor was critical of the way the VCHA handled the termination of Tess Orlando, the former director of acute home and community care for the Sunshine Coast and Powell River areas of B.C.

Orlando had seven managers reporting to her and was responsible for 350 full-time equivalent staff and a budget of about $32 million. Her annual salary was around $103,000.

In the letter dismissing Orlando without cause, the VCHA never attempted to provide any explanation for the termination, something Justice Taylor said is “unfortunately common with such letters.”

He said the lack of information meant Orlando had no basis to assess her ability or chances of finding similar employment, either with the VCHA or in another health-care organization.

Because Orlando was 55 when she was dismissed, he said it would be almost impossible for her to find employment at a similar level.

“It is hard to imagine what explanation (she) would give to a potential new employer in this field as to why she was terminated without cause from a position as responsible as that which she held,” said Justice Taylor.

“As one reaches the pinnacle of a career, the ability or opportunity to replicate it diminishes in direct proportion to the job’s uniqueness and with respect to the person’s age.”

Orlando started working for Vancouver General Hospital (VGH) in 1988 as a clinical nurse specialist and director of family practice.

From 1993 to 1997 she was the director of surgery at VGH. In 1997 she left VGH and accepted a position with the Sunshine Coast Community Health Council (SCCHS).

From 1997 to 2002 she managed a hospital in Seschelt and, additionally, from March 2002 to September 2002 a hospital in Powell River. From September 2002 to Nov. 15, 2004, she was the director of acute home and community care.

In December 2001 the SCCHS was disbanded and its operations and those of four other health authorities were merged into the VCHA. The merger was a result of an order issued by B.C.’s Minister of Health. Orlando’s work continued as before until she was dismissed on Nov. 15, 2004.

At trial, the VCHA argued that, for the purposes of determining reasonable notice, Orlando’s start date was 1997, the year she joined the SCCHS. It said her time at Vancouver General Hospital wasn’t eligible.

But the court disagreed. It said the fact the VCHA was giving Orlando 32 vacation days per year — what she would be entitled to if her start date was 1988 — meant the employer accepted 1988 as her start date.

The VCHA argued she was entitled to those vacation days because a section of the employment agreement stated that a person employed by the VCHA who was employed by any other employer which is a member of the Health Employers Association of British Columbia or the Ministry of Health is credited with benefits, including vacation benefits, through “portability.”

“If the (VCHA) wished to maintain a dichotomy between the length of service in terms of vacation and that with respect to notice then it was, in my opinion, incumbent upon it to make it abundantly clear that that was the case,” said Justice Taylor.

He said a reading of the employment agreement shows that was not abundantly clear and therefore Orlando was employed for 16 years, from 1988 to 2004, for the purposes of determining reasonable notice.

The court acknowledged Orlando did not attempt to find other work, but said it would not deduct anything from her wrongful dismissal award as a result.

“I find that the evidence establishes that while (Orlando) has not sought out similar employment, she would have had an exceedingly difficult task to secure such employment given her age, the uniqueness of her employment with (VCHA) and her lack of knowledge as to why she was terminated,” said Justice Taylor.

He said he would have awarded Orlando 22 months’ notice. But under the Employment Termination Standards Regulations, made pursuant to the province’s Public Sector Employers Act, the maximum notice period is capped at 18 months.

The court awarded Orlando 18 months’ notice, 267 hours of unused sick time and a retirement allowance of one week for each year of service.

For more information see:

Orlando v. Vancouver Health Authority, 2005 CarswellBC 1527, 2005 BCSC 926 (B.C. S.C.)



The liability age poses for workers

The court in Orlando clearly took into account the age of the employee.

“It is no secret that employees terminated at such an age have a much greater difficulty finding employment than do those at a younger age,” said Justice Taylor.

He cited another case in which the court commented on the impact age has in finding another job. In Birch v. Grinnell Fire Protection, a case involving a 50-year-old worker, the court said: “It is likely that the 19 years of employment with the defendant turned more into a liability than an asset when the plaintiff had to look for a job. While his education, background and experience would have been helpful, many potential employers these days are reluctant to hire new employees over the age of 50.”

Justice Taylor said Tess Orlando’s age could only have been a liability to her in finding a similar position.

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