Legal Issues: Trouble in paradise

by Jamie Knight

You’ve built up a successful practice. It’s busy. You have terrific patients. You have a great staff. Well, for the most part your staff is great. Actually it hasn’t been all that great for a few months now, and it’s starting to be a problem.

You employ a receptionist and two assistants. Your two assistants joined you a few years ago, within six months of each other. Your receptionist has been with you for about 10 years now. Your assistants are just terrific. In fact, sometimes you think they do a much better job with the patients than you do.

Your receptionist, Susan, used to be just as wonderful, but not recently. Half the time she comes in late — and not just by a few minutes either. The other day, she was over half an hour late, and she didn’t even explain what caused the delay. She also takes long lunches now and then, especially on Friday. Last week, she was 15 minutes late back from lunch and her breath smelled like she had been drinking wine.

That’s not all. Susan used to be wonderful on the phone, but now she sounds irritable much of the time. The other day you heard her say in a loud and angry voice, “could you just shut up for a couple of seconds while I pull out our schedule.”

And Susan’s not much fun to be around any more — no smiles, not much of the light banter that used to be commonplace at your clinic. Everyone seems to be walking on egg-shells, afraid to get Susan upset.

You’ve had enough. Susan has to go. Susan is 43-years-old. She is married and has a couple of kids. You used to have Susan and her husband over for dinner from time to time, but that hasn’t happened for at least a year, and so you don’t really know how her family life is going right now. But you know what it’s like at work and it’s definitely time for a change.

A Legal Problem

Not so fast with that change, or you’ll be opening your wallet.

Your employees have rights. And you have obligations. These rights and obligations are created by statute and exist at common law. The statutory obligations are those that have been passed into law by the Ontario legislature over the last 100 years or so. The common law is the judge-made law that developed in England over the centuries, dating back to the Norman conquest in 1066.

There are two really important employment statutes with which you should be familiar, at least to some extent — The Employment Standards Act and (in Ontario) The Ontario Human Rights Code. The common law that applies is generally referred to as wrongful dismissal.

I’ll come back to human rights later. Let’s start with employment standards. If you employ people in Ontario, you have to meet minimum standards. An important minimum standard is to provide employees with written notice in the event of termination of employment. The statutory requirement works out, more or less, to one week per year of service, to a maximum of eight weeks. You can pay in lieu of notice, so long as you continue benefits and accrue vacation during the notice period.

Perhaps you think that Susan has misconducted herself in such a way as to take away her entitlement to notice or pay in lieu of notice. Think again. There is no indication that you have talked to Susan about her misconduct. It is not clear that her misconduct is wilful, as she probably means to do well, and is not fully aware that she is slipping in her standards of conduct. Indeed, to a significant extent, you have condoned the slippage by not addressing these problems directly with Susan.

And remember, the statutory requirements are minimum standards only. Susan can take you to Court with a wrongful dismissal claim and likely do significantly better. She is just starting to get to the age where it becomes a negative factor in her ability to find new employment. As well, she has pretty good service with you. A Court would likely award Susan several months of pay and benefits. If you botch the termination and embarrass Susan in front of patients or co-workers, then the Court would stretch that award by a few more months. Six months or more is quite likely in this situation, not counting the legal costs that you will incur and the time away from your practice if you have to deal with a legal claim.

An ongoing legal mess is costly, time consuming, and will continue to be a negative drain on the morale of what was once a settled and happy workplace.

But it could get worse. There are some danger signs in the facts that have been presented about Susan. If she drinks during the workday, is there any possibility of an alcohol abuse problem? Are there issues with her family life that you are not aware of? If you replace Susan with a much younger receptionist, are you open to charges that Susan’s age and family responsibilities were factors in your decision.

Human rights legislation can be a very aggressive tool for an employee who feels that she/he has been wronged. Susan is entitled to be free from discrimination in respect of such grounds as her age, gender, and family or marital status. If she can make a credible claim that any of these factored into your decision to terminate her employment, then you may have to deal with a human rights complaint. Even if the claims are groundless, responding to a human rights investigation can be emotionally draining and take up a great deal of your time, not to mention the legal cost, because you probably don’t want to deal with this kind of thing without professional advice.

A Better Way

Be a LEADER. It is your workplace, so practice the following basic rules of being a successful employer:

Lead — don’t simply manage. Leadership involves setting the standards, not just reacting to the daily problems.

Excellence — insist on it. Your patients are entitled to the best service and care. You are entitled to the best staff.

Action — if there is a problem, nip it in the bud, don’t sweep it under the carpet.

Document — Follow the 5W’s — who, what, why, when and where. If an incident happens, make a note. If you need to talk to Susan about her performance, follow it up with a written memorandum or letter.

Evidence — In addition to your own documentation, there may be other evidence that you need that could, later, help establish unsatisfactory performance. If so, preserve the present so that it can be relied on in the future if necessary. This may include, photos, diagrams, business records, or objects.

Responsibility — It is your workplace. You are responsible. If you are not satisfied, then it is up to you to do something to change your workplace for the better.

A LEADER is prepared to take progressive disciplinary action if necessary. Except in more serious situations, this would generally start with oral counselling, which is designed to find a win-win solution. Oral counselling resolves most problems. If not, you should move to a verbal warning, which is more direct. Next comes a written letter, then a final written warning and, if all else fails, dismissal. Once you get into written warnings, and perhaps even verbal warnings, if you have not been down this road before, you would do well to get assistance from an employment lawyer. More than most, you should know that a little prevention is worth a lot of cure.

A couple of other things to keep in mind: the first is pretty easy; the second can be tricky in a small practice. First, make sure you listen to your troubled employee. Tell Susan your concern, then give her an opportunity to explain. You will get much more information if you give her the opportunity to tell her side of the story before you “punish” her. Second, and this is the tricky part, you want to meet with your troubled employee in private, but you don’t want to be one-on-one behind closed doors, especially if there is no big window where the two of you are clearly visible, and even more so if you are of opposite genders. You should probably leave the door open, and meet where you are visible but not very audible. In more serious interviews, you may want to involve another professional as an observer, which may be easier for those of you who have shared offices.

A Happy End

After thinking about it, you decided to sit down with Susan. You let her know that you had a number of concerns with what seemed to you to be a real decline in her performance. Susan was very relieved to be confronted like this. She unburdened herself with a story of marital problems, increased alcohol use and difficulties with peri-menopause, all of which was creating havoc in her life. She was a very unhappy person who needed some professional help. You were able to coordinate suitable professional intervention with Susan’s doctor and to help with reduced hours of work for a period of time while she got herself back on track.

It may not always be easy with Susan in your office but she has a renewed commitment to you, to her work and to your patients. By being a sensible employer, aware of your legal obligations, you’ve also done some good for a person in need of support. DPM

Jamie Knight is a partner in the law firm Fraser Milner Casgrain LLP. He is the manager of the Labour and Employment Practice Group in the Toronto office.