Partridge v Botony Dental Corporation: Wrongful Dismissal and Discrimination on the Basis of Family Status

Ms. Partridge, age 36, worked for the employer for seven years, initially as a hygienist, and thereafter as a dental practice office manager. Following her return from maternity leave, the employer demoted her to her initial hygienist position with reduced hours and pay. Ms. Partridge objected to the material changes in her employment and reminded her employer about its obligations under section 53(1) of the Employment Standards Act, 2000, SO 2000, c 41 to return the employee to her former position. Although the office manager position was still available, the employer did not return Ms. Partridge to this position. Instead, the employer deliberately increased Ms. Partridge’s work hours, creating a conflict with her children’s day care pick-up schedule. Ms. Partridges’ employment was then terminated for cause within a week of her returning after her maternity leave. The alleged cause for termination was that Ms. Partridge removed patient day sheets from the employer’s premises in breach of her employment obligations. Accordingly, Ms. Partridge was dismissed immediately without notice or pay in lieu of notice.

Trial Decision

The trial judge allowed Ms. Partridge’s claim for wrongful dismissal. Justice Healey of the Ontario Superior Court concluded that the employer did not have just cause for dismissal and awarded Ms. Partridge a twelve-month notice period. In addition, she concluded that the employer discriminated against Ms. Partridge on the basis of family grounds and awarded her $20,000 in damages. Ms. Partridge was also awarded costs on a substantial indemnity basis.

Grounds for Appeal

The employer appealed on fact-specific grounds. Specifically, the employer did not contend the trial judge’s findings of fact in relation to Ms. Partridge’s wrongful dismissal claim. However, the employer maintained that given the facts as found by the trial judge the proportionality analysis set out in McKinley v BC Tel, 2001 SCC 38 and subsequently in Dowling v Ontario (Workplace Safety and Insurance Board) (2004), 246 DLR (4th) 65 (Ont CA), leave to appeal refused, [2005] SCCA no 25 would dictate there was just cause for termination of Ms. Partridge’s employment. Specifically, the employer argued that Ms. Partridge’s breach of her employment obligations by removing the patients’ records from the employer’s premises should have been assessed in the context of the fact that Ms. Partridge took steps to set up a competing business. The employer alleged that considering this context, Ms. Patridge’s conduct constituted just cause for termination.

With respect to the trial judge’s finding of discrimination on the basis of family status, the employer argued that there was no evidence to support the factual finding that the employee could not adapt her childcare responsibilities to her new work schedule or that the childcare arrangements that she put into place upon her return to work were not sustainable.

Court of Appeal Decision

The Court of Appeal (“the Court”) rejected the employer’s arguments and upheld the trial judge’s decision. Specifically, the Court noted that the employer’s grounds for appeal were fact-specific. As such, the trial judge’s findings of fact were entitled to considerable deference.

In addressing the employer’s argument with respect to just cause for termination, the Court noted that the trial judge considered all the surrounding circumstances in deciding whether dismissal was warranted as a proportionate response to Ms. Partridge’s actions. Therefore, the trial judge correctly applied the law and made no palpable or overriding errors. Specifically, the Court noted that with respect to the patients’ records, the trial judge correctly determined that, while Ms. Partridge’s removal of the records constituted a breach of her employment obligations, Ms. Partridge did not do this for the purpose of setting up a competing business. The trial judge was entitled to accept Ms. Partridge’s evidence that her motivation in taking these records was to secure evidence of her reduced hours, which resulted from the employer’s reprisals. In addition, the Court upheld the trial judge’s finding that there was no evidence that any confidential information was disclosed to third parties and as such, there was no harm to patients or to the employer. The court also upheld the trial judge’s findings that Ms. Partridge did not solicit other employees, patients, or suppliers and that most of her planning with another employee occurred outside of the office. As a result of her findings, the trial judge was entitled to conclude that Ms. Partridge was wrongfully dismissed and that there was no just cause for her dismissal without notice or payment in lieu of notice. As such, there was no basis for interfering with the trial decision on these issues.

With respect to the trial judge’s finding of discrimination, the Court was satisfied that the employer’s willful misconduct and its effects on Ms. Partridge were well-grounded in the evidence that the trial judge was entitled to accept. The Court also accepted the trial judge’s conclusion that the employer’s refusals to reinstate Ms. Partridge to the position of office manager following her maternity leave as well as the employer’s reprisals in the form of creating an inflexible working schedule amounted toe discriminatory treatment because of her family status, including, but not limited to, her childcare obligations. In addition, the Court noted that the trial judge was entitled to accept Ms. Partridge’s uncontested evidence that she had made a very complex arrangement with relatives and others whom she had asked to pick-up her children from daycare, despite the fact that such arrangements were not sustainable.

Accordingly, the Court concluded that the employer’s improper actions caused injury to Ms. Partridge’s dignity, feelings, and self-respect. They also materially affected her family’s economic security because of her family’s financial dependence on her salary.

This case stands as a reminder to employers that courts will not shy away from compensating employees for an employer’s failure to accommodate an employee’s childcare obligations without legitimate and justifiable grounds. However, in order to establish that the employer has breached its duty to accommodate, the employee must be prepared to show that he or she has made all reasonable efforts to comply with his or her working schedule by making alternative childcare arrangements.

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