Asking worker back not good enough for manager who accused employee of theft: Court
A grocery store in Edmonton has been ordered to pay a fired worker seven months’ wages in lieu of notice, plus an additional $4,500 in damages, for the way it treated the woman in the time leading up to her dismissal.
Darlene Horyn, 50, was an evening manager at Waysave Family Foods, a neighbourhood grocery store in Edmonton. Her duties included cashing out, closing the store and supervising up to three employees on the shift. She was friends with the Fedoretz family — who owned the store — and had previously worked for them before joining Waysave in 2003.
Horyn reported to the owners regularly, usually by phone. Gradually, the original owner, Michael Fedoretz, stepped back from the business and his son Howard took over, with Horyn reporting to Howard.
In early 2011, another grocery store opened in the area and Howard Fedoretz — now managing the store — became edgy and stressed. When Horyn made her regular reports to him, he was curt and abrasive. On April 7, Fedoretz called Horyn to the back of the store and began yelling and swearing at her, asking: “What’s your (expletive) problem?”
He accused Horyn of sabotaging him and insulted her using profane language.
Horyn was “confused and dumbfounded” and didn’t know what Fedoretz was talking about. She began to cry and went back to the front of the store and finished her shift.
Three days later, Fedoretz called the store shortly after Horyn began her shift and spoke with her. She was in the back office with the door open and another employee was outside. Fedoretz once again swore at Horyn and yelled: “You’ve been screwing me for years.” He used profane language again and Horyn’s co-worker could hear him calling her names on the phone. Horyn asked if he was firing her and Fedoretz replied “Yes.”
Fedoretz calmed down later in the call but still told her: “You can still do cash but if you steal anything, you (expletive) bitch, I will charge you.”
Fedoretz claimed he had observed Horyn smoking and not working while reviewing security camera footage, though he didn’t “specifically recall” calling Horyn names. After Fedoretz hung up, Horyn began to cry and told her co-worker she had just been fired and was going home.
Two days later, Horyn called the store to talk to Fedoretz. He asked her to come back to work, but Horyn said she was uncomfortable with that. She finally agreed to return but only after his father, Michael — her original boss — came back from vacation so she could speak with him directly.
That evening, Horyn went to the store so she and Fedoretz could talk. Fedoretz accused Horyn and a co-worker of starting up a new store to compete with Waysave. Horyn asked him where she would get the money to do that and Fedoretz replied, “From my dad.”
He later gave her a bag of cash to prepare for a bank deposit that evening.
Horyn was able to speak with Michael Fedoretz on April 20, and he revealed there was a problem with theft at the store at night. But Horyn had not been informed of any problem or their suspicions.
On April 21, Howard Fedoretz called the store while Horyn was working to make an employee schedule. He berated Horyn again and hung up.
On April 24, Horyn’s next shift, she left a letter for Fedoretz that referred to the “ridiculous rumour” about her opening her own store and that Waysave had dismissed her — and she left Waysave for the last time.
Horyn filed a suit for wrongful dismissal. Howard Fedoretz denied dismissing her and pointed out that he had asked her back after their argument, and it was Horyn who terminated her employment by leaving. He also explained he had been under stress because of the store’s declining financial situation.
Manager’s conduct breached employment relationship: Court
Fedoretz’s claim that he couldn’t recall some of his insults was unconvincing, found the Alberta Provincial Court. The observations of other employees supported Horyn’s story that he yelled at her and insulted her, and such conduct amounted to dismissal without cause, said the court.
“There can be no doubt that the (manager) Howard Fedoretz engaged in an irregular but irrefutable pattern of conduct intended to demean and belittle Ms. Horyn,” said the court. “It is my finding that this conduct amounted to a breach of a fundamental, implied term of the employment relationship.”
Fedoretz terminated Horyn’s employment when he called her on April 10, 2011, with his accusations and profanities, said the court. This call damaged “the atmosphere and conditions of the employment relationship” and it was unreasonable to expect Horyn to return to work after the “wrongful and hurtful accusations,” said the court.
Horyn’s return to the store after Fedoretz asked her back was only a temporary arrangement to help the business, not an acceptance of the new arrangement. When she left again, it didn’t mean she terminated the employment relationship, said the court.
Horyn was entitled to seven months’ pay in lieu of notice for her eight years of service and lower management position, found the court, and Fedoretz’s conduct leading up to and during Horyn’s dismissal was “unfounded, unjustified, cold, callous and mean-spirited” towards a “loyal and trustworthy employee.”
This conduct caused Horyn stress, embarrassment, humiliation and anguish, which the court considered real damages, as outlined by the Supreme Court of Canada in Keays v. Honda Canada. Waysave was ordered to pay an additional $4,500 in bad-faith damages, for a total of $25,369.57.
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at employment law from a business perspective. For more information visit www.employmentlawtoday.com.