Dr. John Q. Molar is an experienced, successful general dentist, and a confident and skilled weekend skydiver. Somehow he found time from the demands of his busy practice to hit the gym fairly regularly and stay fit and vital. The exercise certainly did not hurt his golf game. He had taken karate for seven years. He was generally immune from fear of anything but John was feeling particularly anxious that day. The anxiety level in his office was so thick that it would have shown up on the x-rays.
Heidi Floss, John’s chairside dental assistant for the past three years, was young, petite and vivacious. Heidi’s charming personality combined with John’s busy secretary being away for an extended holiday led John into allowing Heidi to process insurance applications and payments. This week John discovered thousands of dollars in payments had gone missing. He was in shock. He initially thought of waiting for his trusted secretary to return from holidays to examine the situation but he had a substantial loan payment that was immediately coming due so he was anxious and couldn’t wait any longer. He carefully went over the records and verified the information with the insurance companies directly. Yes, the trail led all the way back to Heidi.
What John did not know was that Heidi had also mastered how to manipulate John’s computer accounting records and she could wipe out almost all of the damning evidence with a few strokes of the keyboard. He didn’t notice that her blouse was already missing the top button and that she had some bruises on her arms from an accident she had suffered previously unrelated to work.
John felt so furious that the clipboard he was holding immediately shattered in his strong hands. He had a temper and everyone in his office knew of his fiery personality.
John was determined to confront Heidi with the damning evidence and fire her that very day. At the same time, poor John was just too embarrassed to tell the rest of the staff that he had been tricked and defrauded by an employee he had personally picked and hired. Accordingly, he was going to ask Heidi to wait until the end of the day when after all the rest of the staff had left, ostensibly to speak to her about something else.
John knew that Heidi would not take this well. Heidi had been flirting with him recently and he knew from their encounters for drinks after office hours that she too had a bit of a temper when under pressure despite her normally pleasant demeanour. Heidi also had keys to the office on a necklace which he needed to get back from her if he was going to fire her.
Although John did not tell his office staff what he had discovered and what he planned to do, the rest of the office could clearly see that John was on edge for the rest of the day.
Finally, the end of the day had come. John decided to wait until the rest of the staff had left. Only John and Heidi were left in the office to confront her, fire her, and get the office keys back from her.
Very luckily for John, Heidi quickly confessed to her transgressions and immediately returned the office keys on her necklace to him. Obviously, this potentially very bad situation went way better than anyone could have hoped for.
With the benefit of hindsight, although Heidi chose to admit to her wrongdoing and left without incident in this case, was this a particularly smart way for John to approach this problem? Had John carefully considered that there were potentially several problems that could arise from his decision to meet with Heidi alone after hours?
Since John was not aware of the extent of Heidi’s familiarity with his computer software, if Heidi made a quick run to the computer to wipe out the incriminating evidence what was John going to do? Was he going to physically prevent her from doing so? Also, what if Heidi refused to return the office key that was on her necklace? Was he going to physically take it from her? Given that Heidi had been flirting with him recently, what did he think she would do when confronted by him? What was he going to do if she resisted or became unreasonable or hysterical?
Heidi was clever and conniving. She had been cunning and audacious enough to divert John’s payments and infiltrate his computer accounting system. If John had touched Heidi or physically prevented her from wiping out the computer information or physically tried to take away her office key, Heidi might have complained to the police that John had assaulted her. Heidi might even have falsely told the police that John sexually assaulted her even if he had only inadvertently touched her breasts while struggling to grab the office key from her necklace. John might well have been only trying to grab the office key from her necklace but since the police officer was not a witness, he or she would have to assess who to believe, John’s or Heidi’s recollection of what had happened. The sad thing for John is that the police officer could have felt that Heidi’s version of the events was credible and could have ended up charging John with assault and/or sexual assault.
Assault is defined in the Criminal Code as follows (there is a more exhaustive definition in the Criminal Code than that stated below, but the key wording is set out below):
Section 265 (1) A person commits assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or imitation thereof, he accosts or impedes another person or begs.
Very generally speaking, sexual assault is an assault of a sexual nature when all of the circumstances are considered and viewed objectively by the court.
How could the police have believed that John may have committed assault or sexual assault? When the police arrived, they would have seen the disparity in physical stature between John and Heidi. Heidi may have told the police about John’s training in karate and that he had intimidated and threatened her as well as touching her. Heidi’s charming personality may have impressed the police officer enough to convince him to charge John with assault and sexual assault. The fact that Heidi had a very slight bruise on her wrist and was missing a button on her blouse would not have helped John at all. The fact that John had decided to allow the rest of the employees to leave before confronting Heidi meant that there were no independent witnesses to help corroborate John’s version of the events. The police officer could have charged John and John would have to defend the charges in court. John might have successfully defended the charges in court but he would have had to spend a lot of time and go through a lot of anxiety in the process.
How could John have better managed the situation to help reduce the chance of being criminally charged by the police? He should have consulted with a lawyer before taking a course of action which could lead to dire and unintended results. Given the circumstances, he also should not have waited until all the staff had left before firing his employee and asking for the keys back. It would have been prudent to have the Office Manager remain present during the discussion with Heidi. John should have been more careful in dismissing his employee.
Disclaimer:The characters in this article are fictitious and are not intended to bear any resemblance to any individuals. This article is intended to provide you with information of a general educational nature only and is not to be taken as legal advice upon which you are to rely for any specific situation. Appropriate advice should be obtained from a lawyer prior to taking any action in any specific situation or circumstance. OH
James H. Chow is a middle-aged lawyer with good teeth. He practices exclusively criminal law and civil litigation and battles for his clients in courts across the Greater Toronto area. He can be reached at tel. (905) 881-3363 and by e-mail at jclex@rogers.com.
Oral Health welcomes this original article.
