Alberta Employment Update - Spring 2012

IN THIS ISSUE

Progressive discipline in the workplace. The Alberta Provincial Court followed jurisprudence requiring an employer to advise an employee of performance issues and allow a reasonable time for their correction before taking further disciplinary steps. Contractual salary suspension and non-solicitation provisions. The Alberta Court of Queen's Bench held that contractual salary suspensions of a plaintiff sports agent during the NHL lockout were admissible, provided the agent still received the minimum wage. The Court also held that the agent's knowledge of—and inaction regarding—solicitation on his behalf was enough to establish a breach of the non-solicitation provisions in his employment agreement. Director's liability for the termination of employees. The Alberta Court of Appeal clarified the powers of directors in respect of the evaluation and termination of a corporation's employees. GILLESPIE V. 1200333 ALBERTA LTD.

Alberta Provincial Court, 2011

Facts:

Bonita Gillespie ("Gillespie"), an occupational therapist, was hired on February 1, 2007, by the Defendant 1200333 Alberta Ltd. (the "Company") to work with various clinics serving the public as the Primary Care Network ("PCN").

Shortly after commencing her employment, Gillespie received and had the opportunity to review a "Policies and Procedures Reference Manual" ("PPRM") which covered areas such as benefits, annual performance reviews, and expectations of employees such as client confidentiality. Confidentiality was also covered by the documentation provided to Gillespie at hiring, including completion of a "Non-disclosure Agreement" ("NDA") dated February 1, 2007, and amended April 25, 2007. The NDA required Gillespie to take all security measures regarding confidential information, and expressly prohibited the removal, retention or destruction of any materials containing confidential information upon termination.

On February 6, 2008, one of the doctors to whom Gillespie reported expressed concern over Gillespie's treatment of his personal nurse, and the manner of completion of a patient form. Gillespie was unable to fill out the form due to lack of information surrounding the patient, and was spoken to by her supervisor, Colleen Enns, in respect of the incident with the nurse. On February 11, 2008, Gillespie used harsh words with a newly hired social worker, and the following day was chastised by Ms. Enns and a Manager of an associated clinic for her language. Gillespie became extremely agitated and was consequently sent home from the meeting for two days and asked to return February 15, 2008. Justice Skitsko noted that while the official reason for sending Gillespie home was that "...she was too upset to see patients[,]" the real reason was to give Ms. Enns, Ms. Walker and Frank Couglan, the Chief Administrative Officer, the opportunity to consider Gillespie's future with the company. Before leaving the office on February 12, 2008, Gillespie was also given a letter of reprimand warning her that she would be subject to disciplinary action and/or termination if her behaviour did not show an immediate and sustained improvement.

Gillespie returned to work February 15, 2008, was terminated, effective immediately, was given two weeks' pay in lieu of notice, and was instructed to clean out her office and leave. In cleaning out her office, Gillespie took a number of letters from patients that contained complimentary statements about her work; many of these documents also contained confidential information. The Company did not become aware of the removal of personal and confidential information by Gillespie until many months after her dismissal, and relied only on communication difficulties and interpersonal conflicts as grounds for dismissal.

Issues:

The issues in this case were threefold:

whether there were sufficient grounds for dismissal; what notice in lieu of dismissal was required, given Gillespie's age (52) and salary ($83,600.00); and whether the Company can rely on the after-acquired knowledge of the confidential documents as grounds for termination with cause. Decision:

Grounds for dismissal

Justice Skitsko held that the Company's actions did not meet the standards of the "progressive discipline approach" developed by the jurisprudence. Skitsko J. summarized the jurisprudence with the following two principles:

It is generally unfair to impose discipline in the workplace without the employee being advised that the conduct complained of is wrong or their job performance is unsatisfactory in order that they have an opportunity to correct their behaviour or improve their performance. It is generally unjust and unreasonable to pose the more serious penalty (of dismissal) before a less serious one has been used in an effort to correct an employee's behaviour [...]. (at paragraph 25) Justice Skitsko held that the progressive discipline approach had not been met, as the Company had not yet conducted the mandatory performance review in the PPRM, and had not given Gillespie a reasonable period of time to conduct her behaviour between the February 12th warning letter and February 15th dismissal. Skitsko J. further held that the evidence submitted by the Company regarding personality conflicts and communication problems was not enough to amount to grounds for summary dismissal, taking into consideration that a certain degree of such conflicts will exist in any workplace.

After-Acquired Knowledge

Justice Skitsko stated that it is settled law that an employer can rely on after-acquired knowledge that just cause existed at the time of...