Are you fired if your employer tells you to get out?
If your employer insults you and tells you to “get out”, is that considered constructive dismissal?
In the case Sweeting v. Mok, Tanya Sweeting was a registered nurse who worked for Dr. Lawrence Man-Suen Mok, a doctor specializing in plastic surgery, for 22 years. She was not only Dr. Mok’s practice assistant but also his office manager. Sweeting had a very large workload, one the court found unrealistic and that she was “overworked”.
The dispute that would lead to Sweeting’s termination was over Dr. Mok’s request to have Sweeting look into electronic medical recording (EMR). Dr. Mok asked her to research EMR a few times but she failed to do so due to her large workload.
During a work meeting, frustrated and angry over Sweeting not having looked into EMR, Dr. Mok angrily told her “Go! Get out! I am so sick of coming into this office every day and looking at your ugly face.” Sweeting understood it as her being fired and left the office. Dr. Mok stated he didn’t intend to fire her.
The Ontario Superior Court of Justice decided that it was a termination, because any reasonable person would interpret those words to be a dismissal from employment.
The more important question was whether Sweeting’s termination was a constructive dismissal, as that would decide whether she was entitled to damages in lieu of notice.
In Your Guide to the Employment Standards Act, 2000, published by the Ontario Ministry of Labour, constructive dismissal is defined as possibly having occurred “when an employer makes a significant change to a fundamental term or condition of an employee’s employment without the employee’s actual or implied consent.”
Such changes may include an employee’s position, work hours, etc., however, the changes may also include situations where the employer mistreats an employee.
In this case, Judge Myrna L. Lack ruled that Sweeting’s employment was constructively terminated, because Dr. Mok’s behaviour and words towards Sweeting at the meeting had the effect of diminishing her worth and standing in the office.
Lack noted “an employer owes a duty to its employees to treat them fairly, with civility, decency, respect and dignity.” If an employer fails in that duty to the point that an employee’s performance or continued employment becomes impossible or intolerable, then a claim of constructive dismissal may follow.
Following the finding that this was a constructive termination, Lack found Sweeting was entitled to damages in place of reasonable notice of dismissal.
When it came to aggravated and punitive damages, the court found that she was entitled to neither, because though the employer’s conduct was reprehensible, the conduct was not found to go far enough to warrant these damages.