Kenneth J. Glasner, Q.C.
The Employment Standards Act, of British Columbia, sets out a minimum requirement with respect to reasonable notice to be given to an employee where there is no written employment agreement.
The Employment Standards Actalso sets out the requirements for the payment of overtime to employees who are not excluded from Part 4 of the Act. Section 72 provides that the employer and employee may join in a written application for a variance of maximum hours of work and overtime wages in certain circumstances.
Under Section 63 of the Act, an employee is entitled, after three consecutive months of employment, to one week's wages as compensation for the length of service. Employers liability increases where after 12 consecutive months of employment, the employee is entitled to an amount equal to two weeks wages.
Further, after three consecutive years of employment, an employee is entitled to three weeks wages plus one additional weeks wages for each additional year of employment to a maximum of eight weeks wages.
It is important that a dentist does not construe that this is a limit of his or her obligation to the employee where the employee has been terminated for reasons other than cause.
In the case of an indefinite hiring (where there is no written agreement that the person is being employed for a fixed term) there is an implied term that the employee is entitled to reasonable notice of termination. The only exception to this rule is where the employee's behaviour has given the employer just cause for termination in which case the employee may be dismissed summarily without notice.
Before terminating an employee, the dentist should make themselves aware of the law as it relates to termination and govern their actions prior to any termination as opposed to seeking legal advice, after the event - which generally is too late.
There are many Court decisions dealing with factors that determine the length of notice. This required notice applies to your staff and to your associates, should they be employees.
I can do no better than to cite the decision of Bardal v. Globe and Mail Ltd.
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.
One should ensure that the agreement not only follows the law in the province of British Columbia, but also deals with any particular matter which is governed by the College's Rules. Only when those factors are considered and applied will the dentist reduce (not eliminate) the possibility of any problems occurring in the future.
You are, after all not only a professional in the health care field, but a business person governing the economic situation of one or more persons who work for you.
Where an employer's behaviour to his employee is callous and shows insensitive treatment in the dismissal, the Courts can properly compensate the employee by adding to the reasonable notice period. See Jack Wallace v. United Grain Growers Limited.
In 1992, the Ontario Court of Justice rendered a decision in Poole v. Shanks. In that case the plaintiff, a receptionist/dental assistant, was awarded 7 ½ months severance for approximately 24 years of service. The Court took into consideration the plaintiff's position, responsibility, length of service and age.
In 1999, the British Columbia Court of Appeal dealt with a similar situation in Cox v. Robertson. The principal issue in that case was whether the plaintiff Ms. Cox, failed to mitigate her damages. The plaintiff was 55 years of age and was the defendant dentist's chair side dental assistant for approximately 18 years prior to being terminated. In that case, the Court found that the plaintiff was entitled to 9 months notice.
Lastly, the British Columbia Supreme Court dealt with a similar situation in Parakin v. Bandali Medical Services Inc. In this case, the plaintiff was employed as a medical office assistant on June 16, 1997, and had been dismissed from her employment on March 5, 1998 without notice. The Court found that 8 months would be reasonable notice.
I've set out but three of the many cases decided by the Courts in dealing with staff in medical/dental offices. One must understand that each set of facts will dictate the range of severance notice required by the employer.
It appears that in all three cases, the employer failed to have in place a properly drafted and signed employment contract setting out, according to the law, the terms and conditions of employment. Risk management dictates that an employer should have in place an agreement as a condition of employment and that such agreement should not be signed in the offices of the employer, but should be taken away and considered by the perspective employee prior to entering employment.
This material deals with complex matters and may not apply to particular facts and circumstances. As well, the material and references contained therein reflect laws and practices which are subject to change. This change may not only reflect the time change but a jurisdiction change. For these reasons, the material should not be relied upon as a substitute for specialized professional advice in connection with a particular matter.
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Kenneth J. Glasner, Q.C.
Tel: (604) 683-4181 / Fax: (604) 683-0226
Suite 1414, Nelson Square, Box 12156, 808 Nelson Street
Vancouver, British Columbia, V6Z 2H2 Canada