IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mrs. Linton has brought this claim for wages in lieu of reasonable notice and for reimbursement of dental expenses against her former employers.  In her Statement of Claim, she also sought punitive damages, alleging the defendants’ treatment of her was harsh and unduly insensitive, and breached their duty of good faith toward her.  Mrs. Linton also claimed aggravated damages for mental distress.  

[2]           In his closing argument, counsel for Mrs. Linton did not pursue her claims for punitive and aggravated damages. I will address this later in these Reasons.  Consequently, the outstanding issues are wages and dental expenses. 

[3]           The defendants say that claimant was dismissed because she took holidays which were not approved. 

[4]           Much of the evidence is undisputed. 

[5]           Shirley Linton worked as a dental assistant for many years.  She started work in this area with her father, who was a dentist.  Although she carried out a variety of tasks in dental offices, her lack of certification in recent years limited the type of work she was able to do.  

[6]           She was hired by Dr. Debra Zokol in November 1999 to work as an assistant.  In the early years working for Dr. Zokol, she worked as a chairside assistant.  In 2013 her duties changed, partly due to her lack of certification.  She was 69 years old.  After 2013 she assisted dental assistants and worked as a receptionist.  She ordered supplies and made reminder calls to patients.

[7]           Dr. Zokol did offer to pay for the course in which Mrs. Linton could acquire her certification before 2013, but Mrs. Linton was not interested.  She was in her late sixties, nearing retirement, and felt that the time she would have to spend away from work at school with no income did not warrant further education.

[8]           Part of Mrs. Linton’s duties was to pull charts for patients for the following day. In the Kelowna office, she was also tasked with posting a list of the patients being treated on that day.  If there was a cancellation, she was tasked with removing that patient’s name from the daily list.  That list was posted in the sterilization rooms in both the Vernon and Kelowna offices. 

[9]           When Mrs. Linton first started her employment, Dr. Zokol only had a Kelowna office.  In 2003 she purchased a Vernon practice and has, for the last 12 years, spent two days in Kelowna and two days in Vernon.  Dr. Zokol has over the years hired associate dentists to work in both the Vernon and Kelowna offices. 

[10]        Most of Mrs. Linton’s time was spent in the Kelowna practice, but she worked in Vernon occasionally.  Her hours were dependant on patient load, and the number of dentists working in the practice.  Before 2013, Mrs. Linton usually worked 2 to 3 days a week.  The office procedure was that the manager, Debra Harding, phoned employees the night before and advised them that they were to work the next day.  No employees were guaranteed a minimum number of hours a week. 

[11]        In February 2013 Dr. Zokol was advised by her accountant that she needed to reduce her staff at her practices in Vernon and Kelowna because of the economic climate.  Dr. Zokol permanently eliminated some positions - two certified dental assistants and a receptionist lost their jobs.  Other employees had their hours reduced.  Ms. Harding, the office manager, was required to work longer hours with less pay.  Mrs. Linton’s work was reduced from three days to one day a week in September 2013.  Mrs. Linton worked for a month under this reduced schedule, and then threatened to sue Dr. Zokol for constructive dismissal.  Dr. Zokol responded by terminating Mrs. Linton on October 3, 2013.  Exhibit 4 is the letter of termination.  Dr. Zokol also provided a severance payment of $3,456.00 at this time. 

[12]        Mrs. Linton retained counsel and through the course of discussions between her counsel and Dr. Zokol’s lawyer, an agreement was reached.  Mrs. Linton was to return to employment with Dr. Zokol for one year of “working notice”.  There were discussions between counsel as to the locations of work and days of work, as Mrs. Linton did not want to work in Vernon.  I am satisfied that the final agreement was that Mrs. Linton was to return to work two days a week, one in Vernon and one in Kelowna.  I am also satisfied that most of Dr. Zokol’s employees work regularly in the Vernon and Kelowna offices, and Mrs. Linton was not singled out in having to travel to Vernon to work.  Mrs. Linton accepted these conditions, and returned to work on November 19, 2013. 

[13]        Early 2013, in February, Mrs. Linton had a conversation with Debra Harding.  Mrs. Linton told her that she planned on retiring in a year, when she was 70.  She also mentioned that she was planning on two holidays in the next year, one in the spring and one in the fall.  Mrs. Linton did not give specific dates to Ms. Harding.  Ms. Harding told Mrs. Linton to come back to her when Mrs. Linton had specific dates.  Ms. Harding did mention to Dr. Zokol that Mrs. Linton was planning a vacation in February 2014, but had not provided specific dates. 

[14]        Mrs. Linton had always received the vacation days she requested in the past. She usually took her vacation when Dr. Zokol did.  She made reservations in August 2013 for a holiday in Hawaii in February 2014 with her son and his family. 

[15]        She did not mention the specific dates of her holiday request to the office manager or Dr. Zokol at the time she made the reservations.  

[16]        When she returned to work in November 2013, Mrs. Linton mentioned her spring holiday again to Debra Harding.  Ms. Harding advised her to speak to Dr. Zokol as there might be a problem with her holiday. 

[17]        Dr. Zokol set the work schedules for the employees and prepared the vacation schedule.  Employees generally took their vacation when Dr. Zokol took her holidays and closed the practices.  This was usually the month of August and during the Christmas season, unless there was an associate dentist working during those times.  If an employee wanted additional holidays, they had to be approved by Dr. Zokol.  In determining whether or not to grant vacation requests, Dr. Zokol considered if other staff were also away at the same time, and whether staff were available to fill in for the person who wanted to take vacation.  Occasionally in the past Dr. Zokol called in replacement staff from a list of available temporary workers to cover for staff vacation. The number of available temporary workers on the list ebbed and flowed, and in 2013, there was no list, and no available temporary workers.  

[18]        In the late summer or early fall of 2013, the available dates for staff 2014 vacations were posted in both the Vernon and Kelowna offices in the sterilization room, beside the daily patient schedules.  The practice was that employees would speak to Dr. Zokol about the days off they wanted, and if there were no other competing requests, and if there was coverage by other staff, Dr. Zokol approved the vacation.  The calendar was then marked with that employee’s holidays. 

[19]        I do not accept Mrs. Linton’s evidence that all employees had to do was mention when they planned to be away and “the office manager would look after it”.  Such evidence flies in the face of reason. The notion that employees in a business can unilaterally take vacation whenever they want, despite the demands or needs of the business is contrary to common business practises and common sense.  

[20]        I do not accept Mrs. Linton’s evidence that she was not aware of the vacation schedule until January 7, 2014.  This schedule was posted right beside the daily patient schedules, which Mrs. Linton had to post and change regularly. “Vacation schedule” was highlighted on the top. She was in the room where the list was posted often during each day she worked, from her return to work in November until January 2014. 

[21]        Mrs. Linton did not provide the exact dates she wanted off, nor did she speak to Dr. Zokol until January 19, 2014, a month before the planned holiday.  This was two months after Ms. Harding advised her that there might be a problem with her vacation, when she returned to work in November 2013. 

[22]         On January 12, 2014 Mrs. Linton telephoned Dr. Zokol and discussed her impending February holiday in Hawaii.  At that point, Mrs. Linton gave Dr. Zokol the specific dates she wanted off.  Dr. Zokol examined the vacation schedule and saw that another employee had already been approved for holidays during that time.  Dr. Zokol told Mrs. Linton that she could not approve her holidays because there were no available staff members to cover her shifts nor did Dr. Zokol have a list of available temporary workers to call upon.  

[23]        Mrs. Linton told Dr. Zokol that she had advised the office manager of her intention to take a vacation almost a year ago.  Dr. Zokol advised Mrs. Linton that she had never given specific dates to either the office manager or herself, and she could not approve the vacation.  Mrs. Linton told Dr. Zokol that she had prepaid for the vacation, and she was going to take it.  Dr. Zokol responded that she could not - Mrs. Linton had to choose between her holidays and her job.  She warned Mrs. Linton that if she didn’t show up for her shifts, she would forfeit her job.  Mrs. Linton’s response was “it is what it is”.  

[24]        Mrs. Linton then spoke to her lawyer, and sent Dr. Zokol a registered letter (exhibit 8) on January 19, 2014.  The letter reads:

[25]        Dr. Zokol responded to this letter on January 23, 2014 with a letter of her own (exhibit 9):

[26]        Four days later Mrs. Linton wrote to Dr. Zokol (exhibit 10):

[27]        Dr. Zokol next contacted her counsel and Mr. Dugas wrote the following letter on January 29, 2014 to Mr. McKay:

[28]        Mrs. Linton continued on working for Dr. Zokol after receipt of this letter. Dr. Zokol went away for a week, and when she returned, Mrs. Linton had gone on vacation. Dr. Zokol instructed her office manager to follow up with Mrs. Linton (as usual), advising her of her shifts the night before and that she was expected to work the next day.  When Mrs. Linton did not show up for her shifts, a final cheque was prepared for her and she was dismissed. 

[29]        After her dismissal in March 2014, Mrs. Linton sent out some résumés, but stopped after three months. She had one interview but no job offers. She was turning 70 in August 2014 and planned to retire at that point. She was of the view that no one would hire her for two months.  

[30]        Mrs. Linton seeks damages of $14,856.00 for the dismissal, as well as $1,100.00 costs she incurred for dental expenses.  One of the benefits of working for Dr. Zokol was that dental care was provided.  Although there was no cost for the dental care, the employee’s time while in the chair was deducted from their wages.  Employee dental care was scheduled whenever there were no appointments with paying patients. Often employees would either get a last minute appointment or lose their appointment if a patient needed care.  Dr. Zokol did provide some dental work for Mrs. Linton in January and February of 2013.  After her dismissal, Mrs. Linton made appointments with another dentist and had $1,100.00 worth of dental work done in April, May, June, August 2014 and on March 10, 2015. 

[31]        As mentioned earlier, Mrs. Linton also sought $10,000 in aggravated damages and $10,000 in punitive damages.  Her counsel withdrew these claims during his final argument.  The withdrawal was proper as there was no evidence to support these claims.  However the withdrawal of those claims should have occurred long before trial and long before defence counsel had to prepare for trial. 

[32]        Was Mrs. Linton’s dismissal without cause?  If so, what are the appropriate damages? 

[33]        The claimant relies on the decisions of Systad v. Ray-Mont Logistics Canada Inc., 2011 BCSC 1202, and Shah v. Xerox Canada Ltd., 2000 CanLII 2317(ON CA).  The defence relies on the decision of Eichenberger v. Heath Consultants Ltd., [1997] B.C.J. No. 2682. 

[34]        In my view, the actions of the parties after Mrs. Linton returned to work in November 2013 are particularly relevant to the issues in question. Although there was a dispute regarding allegations of constructive dismissal before that, the parties came to a resolution.  Mrs. Linton returned to work, and worked under certain conditions until February 2014.  While she may not have been happy about some aspects of her employment, she accepted the new conditions of her work and fulfilled all duties required of her.  All duties except, of course, reporting for work during the time period February 20 to March 3, 2014. 

[35]        The defence argues that Mrs. Linton’s failure to report to work was insubordination of such a serious nature that Dr. Zokol was entitled to dismiss her.  Mrs. Linton argues that even if the court did find misconduct, it was not so grave as to justify dismissal. 

[36]        There is no fixed rule of law defining the degree of misconduct that will justify dismissal.  It is a question of fact to be assessed in each case: Charlton v. British Columbia Sugar Refining Co., 1924 CanLII 279 (BC CA), [1924] 4 D.L.R. 1182 (B.C.C.A.).  Further, as the Supreme Court of Canada held in McKinley v. BC Tel, 2001 SCC 38 (CanLII), [2001] S.C.J. No. 40, it is a contextual analysis which, in some cases leads to a strict outcome, in others, lesser sanctions can be applied.  An effective balance must be struck between the severity of an employee's misconduct and the sanction imposed.

[37]         The degree of misconduct for just dismissal must be that which shows that the employee has disregarded the essential conditions of the contract of service: see Laws v. “London Chronicle” (Indicator Newspapers) Ltd., [1959] 1 W.L.R. 698 at 700. 

[38]        If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with her duties, or prejudicial to the employer’s business, or if she has been guilty of wilful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee.  

[39]        Did Mrs. Linton’s refusal to follow Dr. Zokol’s orders to report to work on the days in question strike at the heart of the essential conditions of her contract of employment?  Can it be characterized as wilful disobedience?

[40]        Although Mrs. Linton did alert her employer a year in advance that she wanted to take holidays in the month of February 2014, she never provided the exact dates of when she wanted to be away.  She was aware, or should have been aware, of the posted holidays of other employees, and should have been aware that her request was not noted on the holiday schedule.  The office manager warned her that there may be a problem with her holiday request in November 2013 and Mrs. Linton took no steps at that time to confirm that her holidays were approved with Dr. Zokol.  In January, a month before her holidays were to commence, she finally spoke to Dr. Zokol, who told her that she could not take time off because another employee had been granted holidays during the same time, and Dr. Zokol had no one to cover for Mrs. Linton.  Mrs. Linton’s actions at that point were to insist that she was taking the holidays, by way of a registered letter.  She then refused to report to work on days she had been scheduled to work.  

[41]        There was nothing unusual, arbitrary or unfair about the manner in which Dr. Zokol approved holidays for her staff.  There was nothing arbitrary in the manner in which Dr. Zokol dealt with Mrs. Linton’s holiday request.  Every employer must balance the needs of their business with the holiday requests of their staff.  Dr. Zokol considered Mrs. Linton’s request promptly once she was given the dates, and gave Mrs. Linton enough notice so that Mrs. Linton could make alternate plans.  The notion that an employee can demand certain holidays and the employer is obligated to grant them is not supported in the law.  In Stein v. British Columbia (Housing Management Commission) (1992), 1992 CanLII 4032 (BC CA), 65 B.C.L.R. (2d) 181 (C.A.), Southin J.A. stated:

[42]        In my view, Mrs. Linton’s refusal to report to work for her scheduled days constituted wilful disobedience of her employer’s orders and insubordination. There was nothing accidental or unconsidered about her actions, which struck at the heart of her employment contract.  Her long years of employment with Dr. Zokol are not a consideration.  Insubordination, like dishonesty, is grounds for termination of a contract of employment without notice.  Both are inconsistent with the continuation of the employer/employee relationship: Candy v. C.H.E. Pharmacy Inc. (1997), 1997 CanLII 4135 (BC CA), 31 B.C.L.R. (3d) 12 (C.A.). 

[43]        I find that the defendants have established there was just cause for Mrs. Linton’s dismissal. 

[44]        If I have erred on this point, I would have also found that Mrs. Linton has not proven on the balance of probabilities the quantum of her damages for wrongful dismissal.  While there was evidence as to her length of service with Dr. Zokol, there was no evidence led regarding her wages.  Further, in her claim for dental work, there was no evidence led as to the length of time each dental procedure took which Mrs. Linton underwent after dismissal.  That time was to be deducted from her paid hours, and without that evidence, it is impossible to calculate the net amount allegedly owed.  

[45]        The claim is dismissed.  The defendants are entitled to recover reasonable expenses associated with this action.