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Watch Your Mouth: What Will Amount to Termination of an Employee Accidentally or Otherwise? 

The Ontario Court of Appeal’s Decision in Sweeting v. Mok, 2017 ONCA 203

Background

The appellant, Dr. Lawrence Man-Suen Mok (hereinafter “Mok”) employed the respondent Tanya Sweeting (hereinafter “Sweeting”) as a practice assistance and office manager at Mok’s medical office (“Office”) for over twenty-two (22) years. Sweeting was a registered nurse and was fifty-two (52) years old at the time her employment relationship ceased. The circumstances of Sweeting’s dismissal were as follows.

The secretary for Mok has stopped working at the Office and as a result, Sweeting’s workload increased. In attempts to lower the extra workload, Mok’s wife began working in the Office two (2) days per week. However, during a meeting between Mok, Mok’s wife and Sweeting a dispute arose. It was alleged that throughout this meeting Mok was angry, using explicit language and pointing his finger at Sweeting. It was further alleged that Mok told Sweeting to “Go! Get out! I am so sick of coming to this office every day and looking at your ugly face.” As such, Sweeting left the Office and did not return.

Sweeting brought a successful action against Mok for constructive dismissal and damages for wrongful termination. Mok brought an appeal against the judgement of the trial judge.

Issue

Whether the trial judge’s findings of credibility and fact were reasonable within the entirety of the context of Sweeting’s resistance to converting office records to electronic format.

The Ontario Court of Appeal’s Decision

The Court first assessed the trial judge’s findings of credibility. The Court found that the trial judge’s credibility findings were clearly explained and thoroughly reasoned and supported by her findings of fact. The Court noted that Mok’s submissions were simply to urge the Court to make a different conclusion on the facts than the trial judge.

As such, the Court held that the trial judge’s conclusion that the words of Mok during the aforementioned meeting were objectively to be understood as a termination by an employee who had worked over two decades in a professional work environment. Further, the Court noted that the trial judge had accepted the evidence that Mok did not intend to terminate Sweeting, however the trial judge reasonably found that Mok did not expect Sweeting to return to work and did not take any steps to rectify the situation and did not contact Sweeting after she did not attend work the next day. The Court held that the trial judge’s conclusion that Sweeting was terminated by Mok and was therefore entitled to damages for wrongful termination was correct and reasonable.

The Court further stated that Mok did not identify any overriding and palpable error in the trial judge’s findings. As well, Mok did not address any error with respect to the trial judge’s assessment of the reasonable notice period Sweeting was entitled to.  The appeal was therefore dismissed.

Our Thoughts

Ultimately, the above summary provides an example of how employers must be careful in what they state to their employee(s), even in the heat of the moment. It is advisable that employers be mindful that if, objectively, the utterances of an employer amount to termination the employer is likely liable for termination damages. Employee(s) should also be mindful how they are spoken to by their employer and if circumstances have amounted to termination.

The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.