Hawrylyshyn v. Jabalee, 2003 CarswellOnt 3405, [2003] O.L.R.B. Rep. 423.
Christine Jabalee worked as a dental assistant at Square One Dental Centre. On Feb. 12, 2002 — the day after she came back from maternity leave — she was fired. She said it was because her employer liked her temporary replacement better. Her employer was ordered to pay her $14,805.12 because the firing contravened the Employment Standards Act.
Her boss had a different story. Dr. Nicholas Hawrylyshyn said Jabalee quit to resume her maternity leave, which she had voluntarily cut short by three months. The dental office filed an application under the act to have another officer investigate the case because it said the first officer made some mistakes and her report was biased and therefore there was a “denial of natural justice.”
For one thing, said Hawrylyshyn, the officer accepted Jabalee’s version of the story — that she was fired — at face value and worked under that assumption. Since that assumption was incorrect, the dental centre contended, the amount it was ordered to pay should be reviewed.
When Jabalee was on maternity leave she began to hear rumours that Hawrylyshyn preferred working with Maryana Vesselyi, her temporary replacement. On her first day back on the job —a day she described as “wonderful” —she was treated kindly by Hawrylyshyn. The next day her career took a turn for the worse.
The rumour about Vesselyi resurfaced so Jabalee asked her boss for a meeting after work to discuss it. It lasted about five minutes and,at the end of it, Jabalee understood she was fired. (She was subsequently given a cheque for her two days’ work.) She went into the office’s common area and burst into tears.
Hawrylyshyn remembered their discussion differently. He said Jabalee told him she wanted a job guarantee and that she wanted to continue her maternity leave for the remaining three months.
Dr. Ting, who also works at the office, testified that Hawrylyshyn is “by nature decidedly non-confrontational.” She said Hawrylyshyn told her, after the meeting with Jabalee, that they had arrived at a mutual decision that Jabalee would continue her maternity leave. Ting found this surprising, since she knew Jabalee had wanted to cut her maternity leave short.
Jabalee said Hawrylyshyn called her several times afterwards, once asking her to provide a letter of resignation, which she declined to do. Hawrylyshyn’s version of the phone call is that he asked Jabalee to attend CPR training, for which she had been previously signed up, and for which he had already paid.
Jabalee’s babysitter testified that when Jabalee arrived at home on Feb. 11 she was crying and said she had been let go because her boss preferred working with someone else. Jabalee then fired the babysitter.
The court disagreed with the dentists’ claim the officer had erred, stating that the officer had gone to “extraordinary lengths” to arrive at her determination of the claim. She had held a meeting in which both sides presented information about what happened when Jabalee returned from maternity leave. She interviewed other people in the office. She then decided that Jabalee’s story was likely the most correct version of events.
Even if the officer had “made a series of errors,” as the dentists claimed, it would not deny natural justice, said the court. Because there was no denial of natural justice, the court decided it did not need to hear evidence in the hearing about the officer’s conduct.
The court had trouble fully believing either Jabalee’s or Hawrylyshyn’s stories because each had inconsistencies and each was “unreliable on key facts.”
The court could not decide whether the claimant was fired or had decided to resume her maternity leave and never returned to work, effectively quitting. Therefore, it was decided the employer did not discharge the statutory burden of proof that it did not violate the act.
The court said the officer should have reinstated Jabalee rather than accepting her claim that her workplace was poisoned (because she had filed a claim) and so she could not return to it.
“If the mere filing of a claim under the act were sufficient to render an employment relationship unviable,” said the court, “reinstatement would never be appropriate.”
Damages, the court said, should have been limited to lost wages from Feb. 13, 2002 until May 6, 2002, the anticipated return-to-work date.
Jabalee’s weekly wages were $520. Including vacation pay of $249.60, the court found she was entitled to $6,489.60.
Christine Jabalee worked as a dental assistant at Square One Dental Centre. On Feb. 12, 2002 — the day after she came back from maternity leave — she was fired. She said it was because her employer liked her temporary replacement better. Her employer was ordered to pay her $14,805.12 because the firing contravened the Employment Standards Act.
Her boss had a different story. Dr. Nicholas Hawrylyshyn said Jabalee quit to resume her maternity leave, which she had voluntarily cut short by three months. The dental office filed an application under the act to have another officer investigate the case because it said the first officer made some mistakes and her report was biased and therefore there was a “denial of natural justice.”
For one thing, said Hawrylyshyn, the officer accepted Jabalee’s version of the story — that she was fired — at face value and worked under that assumption. Since that assumption was incorrect, the dental centre contended, the amount it was ordered to pay should be reviewed.
When Jabalee was on maternity leave she began to hear rumours that Hawrylyshyn preferred working with Maryana Vesselyi, her temporary replacement. On her first day back on the job —a day she described as “wonderful” —she was treated kindly by Hawrylyshyn. The next day her career took a turn for the worse.
The rumour about Vesselyi resurfaced so Jabalee asked her boss for a meeting after work to discuss it. It lasted about five minutes and,at the end of it, Jabalee understood she was fired. (She was subsequently given a cheque for her two days’ work.) She went into the office’s common area and burst into tears.
Hawrylyshyn remembered their discussion differently. He said Jabalee told him she wanted a job guarantee and that she wanted to continue her maternity leave for the remaining three months.
Dr. Ting, who also works at the office, testified that Hawrylyshyn is “by nature decidedly non-confrontational.” She said Hawrylyshyn told her, after the meeting with Jabalee, that they had arrived at a mutual decision that Jabalee would continue her maternity leave. Ting found this surprising, since she knew Jabalee had wanted to cut her maternity leave short.
Jabalee said Hawrylyshyn called her several times afterwards, once asking her to provide a letter of resignation, which she declined to do. Hawrylyshyn’s version of the phone call is that he asked Jabalee to attend CPR training, for which she had been previously signed up, and for which he had already paid.
Jabalee’s babysitter testified that when Jabalee arrived at home on Feb. 11 she was crying and said she had been let go because her boss preferred working with someone else. Jabalee then fired the babysitter.
The court disagreed with the dentists’ claim the officer had erred, stating that the officer had gone to “extraordinary lengths” to arrive at her determination of the claim. She had held a meeting in which both sides presented information about what happened when Jabalee returned from maternity leave. She interviewed other people in the office. She then decided that Jabalee’s story was likely the most correct version of events.
Even if the officer had “made a series of errors,” as the dentists claimed, it would not deny natural justice, said the court. Because there was no denial of natural justice, the court decided it did not need to hear evidence in the hearing about the officer’s conduct.
The court had trouble fully believing either Jabalee’s or Hawrylyshyn’s stories because each had inconsistencies and each was “unreliable on key facts.”
The court could not decide whether the claimant was fired or had decided to resume her maternity leave and never returned to work, effectively quitting. Therefore, it was decided the employer did not discharge the statutory burden of proof that it did not violate the act.
The court said the officer should have reinstated Jabalee rather than accepting her claim that her workplace was poisoned (because she had filed a claim) and so she could not return to it.
“If the mere filing of a claim under the act were sufficient to render an employment relationship unviable,” said the court, “reinstatement would never be appropriate.”
Damages, the court said, should have been limited to lost wages from Feb. 13, 2002 until May 6, 2002, the anticipated return-to-work date.
Jabalee’s weekly wages were $520. Including vacation pay of $249.60, the court found she was entitled to $6,489.60.
