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Termination occurs in many ways, and sometimes in ways that are unusual or unexpected. For example, when does an employer’s conduct towards an employee constitute termination or even constructive dismissal? This was the issue explored in Sweeting v. Mok 2015 ONSC 4154.
The Plaintiff, Tanya Sweeting (“Sweeting”), was employed as a Practice Assistant and Office Manager for the Defendant, Dr. Lawrence Man-Suen Mok (“Dr. Mok”), a plastic surgeon, for over 22 years. She was 52 years old and a registered practical nurse. While working for the Defendant, Sweeting was a registered practical nurse, making $60,000.00 per year plus benefits, which she later testified were “greater than she could hope to receive for similar employment elsewhere”. However, the fact that Dr. Mok’s secretary resigned in December 2011 resulted in tensions building within the office and, on June 20, 2012, Dr. Mok and Sweeting got into a heated argument which culminated in the end of their employment relationship, following Dr. Mok’s telling Sweeting to, “Go! Get out! I am so sick of coming into this office every day and looking at your ugly face.” Sweeting subsequently sued Dr. Mok for wrongful dismissal, or, in the alternative, constructive dismissal. She also sued for punitive and aggravated damages.
The issues before the Court were:
1. Did Dr. Mok’s conduct towards Sweeting constitute termination?
2. In the alternative, did Dr. Mok’s conduct towards Sweeting constitute constructive dismissal?
3. What length of reasonable notice was Sweeting entitled to?
4. Was Dr. Mok’s conduct worthy of an aggravated damages award?
5. Was Dr. Mok’s conduct worthy of a punitive damages award?
M.L. Lack J. found that Dr. Mok’s actions in telling Sweeting to “Go! Get out! I am so sick of coming into this office every day and looking at your ugly face” constituted termination- specifically, that the words “Get out!” were used. The learned justice also found Dr. Mok’s conduct after the fact—in failing to reach out to Sweeting—demonstrative of his intent in this regard.
M.L. Lack J. then turned to the issue of whether Dr. Mok’s conduct had constituted constructive dismissal. He found that the degradation to the relationship between Mok and Sweeting as well as the personal humiliation it caused her to have been equal to a constructive dismissal.
Having found that Sweeting was both wrongfully and constructively dismissed, the learned justice went to determine the notice period that Sweeting was entitled to. Examining Bardal factors such as Sweeting’s age (over 50 years old), lengthy tenure, and the specialized nature of her position, the M.L. Lack J. awarded Sweeting 24 months’ notice.
M.L. Lack J. did not find that either aggravated or punitive damages were appropriate. Sweeting had claimed aggravated damages on the basis that the Defendant’s conduct had caused mental distress, however she had failed to substantiate her claim with medical evidence. On the issue of punitive damages, the learned justice did not find Dr. Mok’s conduct exceptionally malicious or oppressive, and so declined to award damages under this head.
This decision demonstrates for employers the importance of remaining professional and carrying out terminations in accordance with company policies, remaining respectful of the employee. Dr. Mok’s actions, while he may have not intended to terminate Sweeting, were interpreted in this manner which was what exposed him to liability.
The case is also demonstrative of the exemplary nature of punitive and aggravated damages, as well as the continual approach the courts will take to the termination of older workers.
If you have any questions about unfair employer treatment and/or termination, or your rights and obligations in employment law generally, contact Monkhouse Law today for a free consultation.