Legally speaking
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termination on which the company could
rely in court. (Remember, a company has
the right to dismiss the employee but, where
no cause exists, it must give reasonable notice or pay in lieu thereof.)
At trial, the employer also alleged in its
defence that not only had Mr. Dooley engaged
in the prohibited affairs but he had sexually
harassed eight other women.
The evidence at trial consisted of a train of
witnesses testifying about Mr. Dooley's conduct.
Unfortunately for the employer, the eight
women denied being molested or harassed.
Then the two women involved in the affairs
confirmed that these were totally consensual
and took place in private on their own time.
Having heard the testimony, the judge
determined that:
• there was no written company policy on
sexual relations or sexual harassment
• if there was an unwritten policy it was
never uniformly enforced (since other em
ployees had been involved in affairs)
• the order given Mr. Dooley when he moved
was not within the scope of his employment
• the company had not suffered any finan
cial loss as a result of the antics.
Since the dismissal occurred without just
cause, the court awarded damages to the terminated employee equal to twelve months' salary.
Workplace chess
As a working relationship breaks down, the
two sides begin to play a kind of legal chess.
Mr. Loban's self-righteous letter and Mr.
Dooley's decision to court another employee
were conscious moves. Good players know
the value of each move and have to anticipate the consequences. As in chess, rash
moves in the employment sphere without
careful thought and planning can be costly.
Brian Wynn is a principal in the Toronto,
Ontario law firm Farano Green.
Footnotes
Ontario Court (General Division), Macdonald, J.,
unreported.
2
Ontario Court (General Division), Yates, J., unre
ported.
1
Good-Bye
In the last column I addressed, generally,
the sticky issue of employee termination. As
we associate in the workplace, not every situation ends up positively; people jostle and
step on each other's toes. When things deteriorate, for whatever reason, the employer
and the employee end up asking "What does
the law say I can or cannot do when saying
good-bye?"
Two recent Ontario cases, Loban v. AEG
Bayly Inc1 and Dooley v. C.N. Weber Ltd.2,
illustrate how the courts are asked to intervene. They also demonstrate that age-old
factors such as age disparity or sexual conduct, are daily fare for the courts.
former employer stating that he had essentially been forced into the situation. In law
this is known as "constructive dismissal".
"Au contraire," said the judge.
After hearing the parties, Madam Justice
Macdonald was not convinced that Mr. Loban
had done anything else but resign. Her remarks are helpful:
"The reality is that he resigned from the
company. He was not terminated.. . . In my
view, there is no doubt that the disparity of
ages, education, background and work experience, between Mr. Loban and Mr. Alexander,
was the source of the developing tension between them."
The dissatisfied salesman
Mr. Loban, a sales manager for a postal
equipment manufacturer, ended up in conflict with a division manager who, he claimed,
forced him to resign. He had complaints about
the particular manager, Mr. Alexander, who
was 29 years old. Mr. Loban was 54.
After general hostility developed between
the two, Mr. Loban became part of a work
team preparing an important project. His
work on the project, said Mr. Alexander in a
review, was inadequate. Apparently he displayed a very negative outlook and was openly
critical of Mr. Alexander. Mr. Loban disagreed
with the assessment and became more incensed
when he was asked to work on a certain product which he considered unmarketable.
Mr. Loban submitted a resignation letter
which stated:
"[My] function in the postal areas has been
completely taken over by Roger Alexander
leaving me with only a minor support role
and routine functions such as spare parts
orders. Such action can only be taken for
what it legally is: dismissal."
However it seems that the resignation was
only the first step. Mr. Loban then sued his
now prevail, must be able to expect flexibility from employees. . . . [E]mployees must
have the capacity to adjust to the ever-changing mandates that so frequently face employers in these economic times."
Thus Mr. Loban had no complaint which
would win his lawsuit and employers can take
some comfort that the courts will recognize
the necessity to adjust work assignments in
order to meet deadlines or market requirements. The judge is recognizing that the entire system would come to a grinding halt if
an employer had to worry about constructive
dismissal claims every time they wanted to
reorganize. This is not to say that an employer
can play fast and loose with job descriptions
after hiring or promoting a person. Any major reassignment, especially if there is some
humiliation or a definite reduction in responsibilities, raises the spectre of a constructive
dismissal. In light of the Loban decision, however, the employer is not handcuffed.
The amorous executive
The judge also commented that the employee had a very "rigid" personality and
showed some inflexibility.
Even more important were her views about
what an employer can expect in reassigning
tasks or varying work routines. In law, a constructive dismissal occurs when the employer
"demotes" an employee. This can involve a
substantial change in responsibilities, reporting relationships or pay. In his letter, Mr.
Loban attempted to depict his role in this
light. The judge, however, rejected this scenario commenting:
"In this context, I would comment that
employers, facing the market conditions that
In the Dooley case, the plaintiff was a 37year-old company executive with nineteen
years of service for a family hardware firm.
He was fired for having affairs with women
in the company. By his reckoning, the company had no right to use these grounds as
just cause for dismissal.
When word got around that Mr. Dooley was
"involved" with an employee at the headquarters and separated from his wife, management
decided to move him to a subsidiary office.
The owners were worried about office morale.
When Mr. Dooley was transferred he was
advised that he would be dismissed if he became involved in another affair with a female
employee. He was also urged to take counselling for what the company felt were his
sexual problems. He refused the counselling.
He did have another consensual affair with
an employee. He was dismissed without notice or any termination payment.
Mr. Dooley's lawsuit for wrongful dismissal
alleged that there was no true cause for his
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