At the time of trial, Plaintiff was 39 years of age. She is a dental hygienist by education and training. Plaintiff bega

[answerhappygod]

At the time of trial, Plaintiff was 39 years of age. She is a
dental hygienist by education and training. Plaintiff began her
employment with Defendant in March, 2004. There was no written
employment contract. Her employment was terminated on July 19,
2011, making her term of employment seven years and four months in
length. During that time she had two maternity leaves. The first
ran from June, 2007 to July, 2008, and the second from June, 2010
to July, 2011. Plaintiff was initially hired by Defendant as a
dental hygienist. In 2007, her role changed to that of office
manager. The parties are not in agreement as to the date on which
Plaintiff assumed the position of office manager; Plaintiff's
evidence was that it occurred in March, 2007, and her former
employer's evidence was that it occurred in October, 2008. This
issue will be revisited later. Defendant's sole director, officer
and shareholder is Balbinder (“Bo”) Jauhal. In 2002, Defendant
opened the dental office at which Plaintiff came to work two years
later, called Big Bay Point Dentistry. Jauhal was not consistently
at the premises, as a result of operating other practices in other
locations. She typically came to Big Bay Point Dentistry twice per
week, for the morning. There were no written office policies or
procedures. As the office manager, Plaintiff was responsible for
the general operations of the practice, including managing patient
bookings and staff schedules, answering phones, pursuing bad
accounts, advertising for the practice, collecting and paying bills
by cheque or corporate credit card (although Jauhal would sign the
cheques), running advertisements for staff, interviewing, hiring
and firing employees in collaboration with Jauhal, with Jauhal
having the final decision, training staff, and dealing with
maintenance issues. At the time of Plaintiff's termination, the
office hours of Big Bay Point Dentistry were Monday to Tuesday 10
a.m. to 8 p.m., Friday 8 a.m. to 4 p.m., and Saturday 9 a.m. to 4
p.m.. The hygienists typically started at 10 a.m. The hygienists’
hours were Monday to Thursday 10 a.m. until 8 p.m., and Friday and
Saturday 9 a.m. to 4 p.m.. Between her date of hire as a hygienist
and the day that she was given the position of office manager,
Plaintiff's work hours were 10 a.m. to 6 p.m., Tuesday to Friday.
She earned $35 per hour as a hygienist. There was no guaranteed
minimum number of hours; they ranged from 20 to 35 hours per week.
As a hygienist, she was only paid for the hours spent working on
patient care. Once she accepted the management position,
Plaintiff's hours changed to 9 a.m. to 5 p.m., although there is a
dispute over the extent to which her actual hours fluctuated weekly
within those set hours. She continued to work four days per week,
Tuesday to Friday. While the hygienists were required to take an
unpaid lunch break, as the office manager, Plaintiff worked through
her lunch hours and was paid for that time. As an office manager,
Plaintiff's rate of pay was $41 per hour. In 2009, which year was
uninterrupted by a maternity leave, her total earnings from
Defendant were $70,100. Prior to her return to work in July, 2011
following her last maternity leave, Jauhal told Plaintiff by way of
text messaging that she was "booking her into the hygienist
schedule with patients booked Tuesday 8-3, Wednesday 8-3, Thursday
9-3, Friday 8-3". Thereafter began a series of events and
interactions between Plaintiff and Jauhal that culminated in
Plaintiff being fired on July 19, 2011. At the time of Plaintiff's
dismissal, Jauhal provided Plaintiff with a cheque for a severance
payment in the sum of $7,605.50, indicating on the Record of
Employment that it was representative of seven weeks' pay. Under
the section of that document entitled "comments", Jauhal wrote as
follows: *did not return to work on agreed date after end of
maternity leave 1. Taking day sheets - personal patient information
2. Falsifying hours worked. Leaving at 3:15 signing out at 4:00
p.m. 3. Demanding to work thru (sic) lunch. Demanding to work hours
not available. * Wilful neglect Plaintiff received this Record of
Employment and severance cheque at the meeting during which she was
terminated. Plaintiff returned the cheque to Jauhal that same day.
Jauhal testified that she amended the Record of Employment six days
later so that the comment section then read: 1. Did not return to
work on agreed date 2. Falsifying hours worked 3. Demanding to work
thru (sic) lunch 4. Demanding to work hours not available 5. Taking
home day sheets with personal patient information. Demonstrating
wilful misconduct, disobedience, wilful neglect of duties. During
Plaintiff’s time as manager, and at her termination, there were
approximately 10 employees working at Big Bay Point Dentistry. One
of the primary dental hygienists was Jillian Caswell. Another
hygienist was Meghan Johnston. Kristine Hubble was a dental
assistant, as was Katie Ryckman. Cathy Petrie worked at the front
reception desk. These latter two individuals, as well as Jillian
Caswell, continue to be employed by Defendant and testified as
witnesses. The dentistry office produced day sheets on a daily
basis, which were kept in each operatory. The practice of each
employee varied; the day sheets were either posted on a wall behind
the patients while treatment was being given, or on the inside of a
cabinet door. They contained the patient's full name, treatment to
be performed, and patient medical alerts, if necessary. They
contained information for approximately 40 patients each day. They
were shredded at the end of each day to maintain patient
confidentiality. The computer software used by Defendant permitted
the tracking of patient information such as patient names, contact
information and scheduling details, as well as business financial
reports. When she became the manager, Plaintiff was the only
employee to know the secondary password to the system, which
allowed access to all of the same information that was accessible
to Jauhal. She was also given the code for the office safe, and the
keys to the filing cabinet and the office itself. Documents such as
resumes, employee reviews, and supplier information and statements
were kept in the filing cabinet. A term of working for Defendant
was that patient confidentiality was to be maintained by the
employees. Allegations of Each Party Plaintiff alleged that she was
promoted to the position of office manager in March, 2007, and that
it was therefore a position that she held for three years and four
months. Prior to her return from her second maternity leave, Jauhal
advised her that her position as office manager was no longer
available, and forced her to assume her former job as a hygienist.
In doing so, Jauhal reduced Plaintiff's work hours, as well as the
certainty of those hours. Plaintiff alleged that when she attempted
to assert her right to be reinstated to her previous position and
working conditions, Jauhal responded by way of reprisal. Jauhal
insisted that Plaintiff work during hours that she had not worked
prior to her maternity leave, including times that knowingly
conflicted with Plaintiff's daycare arrangements. Met with further
insistence from Plaintiff that she be reinstated on more favorable
terms than were being offered, Jauhal terminated her. The plaintiff
alleges that by express or implied term of the employment
agreement, her employment could only be terminated on reasonable
notice or pay in lieu of notice. By failing to provide either,
Plaintiff alleged that Defendant breached those terms. Plaintiff
also alleged that the refusal by Defendant to reinstate her to her
prior position was discriminatory, and a breach of the Ontario
Human Rights Code, R.S.O. 1990, c. H and a breach of the Employment
Standards Act, 2000, S.O. 2000, c. H. Further, being terminated
after asserting her right to reinstatement amounted to a reprisal,
and was another contravention of a legislated employment standard.
Defendant alleged that while it was able to reinstate Plaintiff to
the position of office manager, and that the position remained open
for her during her maternity leave, it was Plaintiff who requested
that she assume her former role as a hygienist. She then demanded
that Jauhal change the ordinary business hours of the dental
practice by changing regular opening times from 10 a.m., to 8 a.m..
As a result of Defendant's refusal to alter the hours, Plaintiff
began to systematically harass management and other employees. It
was alleged by Defendant that such misconduct and office disruption
constituted lawful cause for dismissal. There were two additional
grounds advanced by Defendant as cause for terminating Plaintiff’s
employment. The first is an allegation that, in conjunction with an
intention to set up a competitive dental practice in the same area,
Plaintiff secretly copied and removed confidential and proprietary
patient records and information from Defendant. The second is that
Plaintiff contacted, solicited and procured other dental hygienists
employed by Defendant for the purpose of having them join her new
business. It is alleged that in using this proprietary and
confidential patient information to her own benefit, Plaintiff
caused Defendant to suffer damages through lost revenue and
decreased resale value. The claim for diminished business value was
not pursued at trial. The claim for lost revenue was pursued, but
was lowered from $200,000 to $25,000. Issues: 1) Decide if this is
a case of “wrongful dismissal” or, alternatively, if the employment
was terminated with “just cause.” Explain your decision referencing
course materials. 2) Apply what you know about agency when
answering this question. The employer decided that the plaintiff
would no longer be the officer manager. Besides the plaintiff, who
else should be informed about this change? Why would it be
important to the employer to inform these people that the plaintiff
was no longer in this role? 3) If the judge finds sufficient
evidence that the plaintiff has taken client files home intending
to use this information to support her new business, what remedy
could the defendant seek in connection with this breach? 4) Could
the plaintiff be accountable if she lured the defendant’s
hygienists to leave the defendant and come work for her? Why