Maintaining adequate and open communication between employers and employees is critical in order to keep the employment relationship healthy and productive. However, sometimes these relationships can be complicated due to the power imbalance between the parties. A recent decision from the Provincial Court of Alberta illustrates how important it is for employers to properly communicate with employees, even when an employee is off work. Further, this case highlights the consequences that an employer can face if they terminate an employee without proper communication while they are out on sick leave.
Employee commences claim against employer for wrongful dismissal
In Starling v. Independent Living Resource Centre of Calgary, the plaintiff employee commenced an action against her employer for wrongful termination. She sought damages for payment in lieu of notice, unpaid sick days, and aggravated, punitive and/or exemplary damages.
The employee began working for the defendant employer as a program coordinator in January 2016. She worked for the employer for just under three years before she was terminated in September 2018. At the time of termination, the employee was 48 years old. She was working 32 hours per week and earned $32,760 annually. She did not have any performance-related issues throughout her employment and received a positive performance review in April 2018. Her manager also provided her with a positive letter of reference before her termination.
Employee placed off work due to health concerns
The employee’s manager was terminated without explanation in May 2018. The employee told the Court that she felt “gunned for/targeted” following her manager’s departure, in part because some responsibilities from her job were taken away at that time. In the summer of 2018, the employee began experiencing health problems, including shaking, chest pains, and severe headaches. She was later diagnosed with Type 2 diabetes and high blood pressure.
Following her diagnosis, the employee obtained a doctor’s note dated August 16, 2018, which excused her from work for medical reasons for two weeks. The note set the employee’s return to work date as August 31, 2018. A second note was obtained from a different doctor that excused her from work until September 17, 2018.
Employee placed on unpaid sick leave by employer
The employer mailed the employee a letter acknowledging the medical note and indicating that she had been placed on unpaid sick leave as of August 13, 2018. The letter also stated that the employee did not have any accrued sick days left, and while she was on leave, she was prohibited from doing any work, contacting clients, or visiting the office. The employer also told the employee that in order to return to work, she would be required to provide one week written notice ahead of her return, in addition to a doctor’s certificate indicating she was medically cleared to return to work.
The employee told the court she felt “threatened, betrayed, and concerned” when she received the employer’s letter. She said she was particularly upset about being prohibited from visiting the workplace or contacting anyone there. She expressed her discontent to management, saying she was “very hurt by the way I have been treated since I submitted my sick leave.” She also told the employer that she had 16 sick days remaining, as well as vacation time that she could use, and she should not have been placed on unpaid leave. Finally, the employee told the employer that she would contact Alberta Employment Standards if she was not paid by August 31, 2018.
By September 4, 2018, the employee had not been paid. She was still scheduled to be away from work for another two weeks and advised the employer that she intended to take legal action against them for a failure to pay her while she was off. The employer told the employee that they did not agree with her claims of having sick days to use and affirmed that it intended to enforce the conditions of its previous letter with respect to her return to work.
Employee terminated while on sick leave
There was no further correspondence between the parties until September 26, 2018, when the employer emailed the employee to advise that her sick leave expired on September 17, 2018. However, she had not yet provided her one week’s written notice of her intention to return to work. The employer added, “We have no legal obligation to reinstate your employment,” adding, “If you don’t provide us with a reasonable explanation as to why you didn’t report to work on the expiry of your leave, we will assume that you have no intention of returning and will be terminating your employment for cause.”
The employee did not respond to that email and testified that she was not in the right physical or emotional state to respond. She told the Court that while she knew her second note’s sick leave period had expired, she was unable to see a doctor to get a new note.
Was a lack of response by the employee a sufficient reason to terminate the employee?
The Court began its analysis by stating that an employee is entitled to reasonable notice of termination. In the case at hand, there were no performance issues with the employee’s work. While an employee does have an obligation to report for work, an objective assessment of the circumstances is needed to determine if their failure to do so is warranted.
In this case, the employee had not provided the required letter stating that she was able to return to work and had been told to stay away from the office until she was better. While the employer may have been expecting to hear from the employee, they had no information to conclude that she had recovered and could work again. They made no effort to call her or check on her health prior to threats and her eventual termination.
The Court found that the employer had not demonstrated a failure by the employee to return to work and, therefore, did not have sufficient cause to terminate her. While the employer’s conduct did not warrant punitive damages, the Court did award damages to the employee in the amount of $10,305.80.
Contact the Employment Lawyers at DBH Law in Calgary for Representation in Wrongful Termination Claims
The skilled employment lawyers at DBH Law have over 25 years of litigation and advocacy experience. We provide clients with strategic and responsive legal guidance on various employment law issues, including claims of wrongful dismissal and severance packages. If you believe you have been wrongfully terminated, contact us online or by phone at 403-252-9937 to learn how we can help you.