Latest news with #wrongful dismissal
Yahoo
a day ago
- Business
- Yahoo
Howard Levitt: Even the most desultory employee can find favour with the courts
Sometimes employees almost beg to be fired, racking up workplace infractions with abandon and leaving a messy trail as though scattering confetti at a wedding. And even then, judges are loathe to deprive them of wrongful dismissal damages. As Justice R. Lee Akazaki of the Ontario Superior Court described in a recent case: 'At the time of his dismissal as a salesperson at Brandt Tractor, (the plaintiff) was 56 years old and had worked there for 18 years. He never made it easy for himself. Several times during his career, members of the public complained about his driving. He crashed the company truck. He injured himself at least once, while demonstrating a tractor attachment to a client. Brandt kept him on, and he was successful enough as a sales producer.' But all strokes of good fortune (or employer beneficence) eventually come to an end. In this case, the employee's final straw was a serious customer complaint about multiple varieties of bad service and allegedly inappropriate conduct. The company seized upon this incident — on top of his earlier record — to anchor the dismissal. The risk in using a final incident as an excuse to terminate a worker is that you must show the event was worthy of discipline. If not, the case for cause fails. At trial, the employer relied on an email written at the time by a manager who received the call in which the customer detailed his litany of complaints. According to the judge's ruling, '(The plaintiff) did not help himself very much in giving evidence. My impression … was that he lacked credibility. There was a record of work-related incidents and discipline under three different managers. He declined to accept he needed additional training or that he really deserved to be disciplined. Thus, if Brandt established that (the plaintiff's) encounter with his final customer was worthy of discipline, the employer would have proven just cause.' But the employee (or his lawyer) made a fatal mistake. They did not call the customer as a witness. Therefore, all the evidence was hearsay. The problem with hearsay — and the reason why it is generally inadmissible — is that the other side has no opportunity to cross-examine the relevant witness as to precisely what occurred. As the court noted: 'A negative credibility assessment of (the plaintiff's) evidence and version of events does not amount to proof that the encounter went precisely as the customer claimed it did. The court had no means of testing the credibility of the customer's account as related by the manager who wrote the email.' So, even though the court was disinclined to believe the employee, it had no cogent admissible evidence that he had committed the misconduct complained of. It found that the final incident on which the termination rested was not proven, and therefore there was not cause for dismissal. I experience this problem regularly with employer clients. They do not, for obvious reasons, want to involve their customers in a legal proceeding and will instead try to find a way to win the case without them. I tell these clients that unless the customer testifies at trial the misconduct cannot be proved, and if the company is relying on the customer's complaint to justify the dismissal for cause, it simply cannot win. Those employers inclined to second-guess me now have a judicial finding to cure them of any doubt. In determining wrongful dismissal damages, the court concluded that if the plaintiff had been offered 12 to 15 months' severance, he would likely have taken it. Such reasonable expectations are generally what should determine the appropriate damages. However, the judge added, 'Employment law … recognizes the special role of employment in an individual's identity and life,' and instead increased the amount awarded to 17 months' pay. Following his dismissal, the employee accepted a job driving a parts truck at a much lower salary. He testified that he wanted to find a less stressful job. One might have thought that this admission would be viewed as a failure to mitigate and lead to a reduction in his damages. But the company did not establish that its former employee could have found comparable work if he had looked for it, so his wrongful dismissal damages were not reduced. To add insult to apparent injury, the court did not even reduce his damages by the amount that he earned in his new job. In this, the judge relied on a court of appeal decision that employees who are forced to take lesser jobs after being fired will not have the income from that job deducted, as income from new employment will normally be deducted in assessing wrongful dismissal damages. Howard Levitt: Employers must investigate harassment, even if it occurs in private and after hours Howard Levitt: What the Trump–Musk falling out can teach employers and employees This case is a cautionary one for employers and shows the extent to which our courts will go in finding in favour of employees. It is also an open invitation to even the most desultory employee to not take an allegation of cause seriously. Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada.
CBC
4 days ago
- Health
- CBC
Former AHS CEO denies defamation claims from Alberta premier's ex-chief of staff
Former Alberta Health Services CEO Athana Mentzelopoulos is denying defamation allegations from a previous chief of staff to Alberta's premier. Marshall Smith, who left his position as Premier Danielle Smith's top aide in October 2024, filed a lawsuit against Mentzelopoulos in the wake of her own wrongful dismissal lawsuit against AHS and the provincial government. While they have the same last name, Marshall Smith and the premier are not related. Smith alleged Mentzelopoulos made false and defamatory statements about him in court documents filed as part of her wrongful dismissal suit. His statement of claim also names the Globe and Mail newspaper, its Calgary reporter Carrie Tait, and an unnamed man who is believed to be a former board member for the health authority. He is seeking $12 million in damages. In a statement of defence filed in Court of King's Bench of Alberta last week, Mentzelopoulos said she hasn't defamed Smith, nor has he suffered damages as a result. The legal filing calls Smith's allegations "invented attempts to allege harm." It also says his lawsuit appears to try to "distance Smith himself from certain members of the private sector and to downplay the nature of his role in the history of events appropriately recounted by Ms. Mentzelopoulos in her action against the Crown and AHS." The statement of defence also says Mentzelopoulos's statements are shielded from defamation action because they were made in the course of judicial proceedings. None of the allegations in Mentzelopoulos's original lawsuit, or in the subsequent statement of claim and defence related to the Smith lawsuit, have been proven in court. Mentzelopoulos claims she was fired because she'd launched an investigation and forensic audit into various contracts and was reassessing deals she had concluded were overpriced with private surgical companies she said had links to government officials. AHS and Adriana LaGrange — the former minister of health who is now the new minister of primary and preventative health services — have denied Mentzelopoulos's claims in statements of defence that allege she was fired due to her job performance. The province has appointed a former chief judge from Manitoba to conduct a third-party investigation into procurement. The auditor general and Alberta RCMP are also investigating the matter.
Yahoo
5 days ago
- Health
- Yahoo
Mentzelopoulos denies defaming Alberta premier's former chief of staff in court filing
Lawyers representing the former head of Alberta Health Services (AHS) Athana Mentzelopoulos are denying claims of defamation by Premier Danielle Smith's former chief of staff and call for his lawsuit to be dismissed in recently-filed court documents. Marshall Smith, who is unrelated to the premier, filed a $12-million lawsuit in May against Mentzelopoulos, the Globe and Mail newspaper along with one of its reporters, and another person whose identity is unknown to him but believed to be a former AHS board member. Smith alleges statements in Mentzelopoulos's $1.7-million wrongful dismissal suit, along with further court filings and subsequent media reporting, defamed him and resulted in emotional distress, stress, depression, anxiety, embarrassment, loss of reputation, humiliation and an inability to secure work in his chosen profession. Mentzelopoulos's lawyers filed a statement of defence in Court of King's Bench in Edmonton last Wednesday that denies Smith's claims in their entirety. 'Mentzelopoulos denies each and every allegation set forth in the plaintiff Marshall Smith's statement of claim,' it states. 'He is not entitled to any damages or any relief whatsoever from Ms. Mentzelopoulos. Ms. Mentzelopoulos did not defame Mr. Smith and did not cause him loss or damages.' Her lawyers further argue that allegations contained in her court filings are protected by legal privilege and therefore are immune from legal attack. 'Ms. Mentzelopoulos has an entitlement to state the facts that gave rise to her current circumstances.' The statement also denies Smith suffered any damages as a result of Mentzelopoulos, and even if that were the case, 'the damages claimed are grossly excessive, exaggerated, and not warranted in the circumstances.' It goes on to refute 13 specific allegations Smith makes in his statement of claim, and seeks to have his lawsuit against her dismissed with costs. 'Her statements in the pleadings in her action are statements of fact, they were true or substantially true in substance and fact, and, to the extent any of her statements are statements of opinion, they constituted fair comment,' her statement reads. She also claims to have no knowledge of the individual Smith purports to be a former AHS board member who he also believes to have defamed him. Smith left his role as the premier's chief of staff on Oct. 31, 2024, after just over two years in the position. None of his or Mentzelopoulos's claims have yet been tested in court. Mentzelopoulos took on the role of CEO of AHS on Dec. 7, 2023, and was fired on Jan. 8, 2025. She alleges in her own lawsuit that she was improperly fired by then-deputy minister of health and AHS board member Andre Tremblay at the behest of then-health minister Adriana LaGrange, but that both lacked the authority to do so. Mentzelopoulos has sought a summary judgment whereby a judge would rule on the legality of her firing in an effort to produce an expedited resolution that would also keep the matter from going to trial. The government told Postmedia last month that it plans to 'vigorously' oppose Mentzelopoulos's application, calling it legally baseless and claiming it includes a litany of misinformation and false claims. mblack@ Bookmark our website and support our journalism: Don't miss the news you need to know — add and to your bookmarks and sign up for our newsletters here. You can also support our journalism by becoming a digital subscriber. Subscribers gain unlimited access to The Edmonton Journal, Edmonton Sun, National Post and 13 other Canadian news sites. Support us by subscribing today: The Edmonton Journal | The Edmonton Sun.
