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Calling senior lawyer dishonest, negligent can get you fired

|Written By Siobhan McClelland

A lawyer who accused her principal of being dishonest and negligent was justly fired for cause, says the Court of Appeal.

In Bennett v. Cunningham, the appeal court overturned the Divisional Court’s ruling and restored the trial judge’s finding that Mississauga lawyer, Dawn Marie Bennett, was terminated for cause after she delivered a letter to her principal accusing her of taking dockets for work performed by Bennett and attributing them to herself.

The flip-flopping results in this case illustrate the uncertain nature of how wrongful dismissal law is applied, which can cause difficulties for employment lawyers when they provide advice to clients.

“Really, no two cases are likely the same,” says Ronald Minken of Minken Employment Lawyers.

He adds there can be cases where different levels of court come to different decisions, making it difficult for lawyers to advise clients. “Employment law certainly isn’t black and white,” he says. There are “a lot of grey areas.”

George Vassos, of Kuretzky Vassos Henderson LLP, says this case is a prime example of the difficulty employment lawyers have when assessing whether there is just cause. This is why only one per cent of these cases go to trial, he points out.

Kenneth Alexander, who was counsel for Karen Cunningham, the employer, agrees it’s difficult for lawyers to advise clients in this area.

“It’s a moving target,” he says, adding that it is only in very exceptional circumstances that a situation amounts to just cause for dismissal without the employer having to pay something.

Alexander says this decision may give people engaged in professional practices, such as law, pause before they trash their bosses.

The facts in this case go back to 2002, when Bennett, a 2001 call, was looking for a job after being out of work for five months. On July 15, 2002, Bennett began working for Cunningham, a sole family law practitioner. At the time, Bennett had little experience in family law and expressed concerns with her work and steps were taken to address her concerns in August and November.

On Dec. 21, 2002, Bennett gave Cunningham a four-page letter, which advised of nine areas of concern, including dockets for work Bennett performed that had been attributed to Cunningham. The dockets were entered by a receptionist or a billing clerk, not Cunningham. The letter stated “[a]s my income depends solely on my billable hours docketed and collected, the monetary gain to you is both dishonest and negligent.” Cunningham left on vacation that day and, when she returned on Jan. 6, 2003, she fired Bennett.

The trial judge found the letter provided a sufficient basis to conclude Bennett had been insolent to the extent that the employment relationship could no longer be maintained. The judge stated that “[t]he overall tone of the letter was anything but courteous. It was critical. It was accusatory. It was disrespectful. The letter suggested that Ms. Cunningham was disorganized, incompetent, dishonest, and negligent.”

“I find that the contents and tone of the letter constituted serious misconduct on the part of Ms. Bennett,” wrote Superior Court Justice George T. Valin. “The insolence was not reconcilable with maintaining the employment relationship. In the circumstances, Ms. Cunningham had just cause for terminating the services of Ms. Bennett without notice.”

The Divisional Court overturned Valin’s decision, finding he erred in failing to apply the contextual approach assessment, which involves looking at the circumstances surrounding the conduct and the nature or degree of the conduct. Had the trial judge applied that analysis, the Divisional Court indicated Valine would not have found just cause.

The Court of Appeal disagreed with the Divisional Court, holding the trial judge’s reasons demonstrated he did apply the contextual approach and zeroed in on the central question, which was whether the Dec. 21 letter provided cause for immediate termination. Valin had concluded there was just cause and the appeal court agreed with his decision.

Vassos does not believe this decision will change wrongful dismissal law. He thinks it came down to what the judges at each level thought about the dishonest and negligent comment in the letter. He adds that if a young lawyer came to him and called his honesty and integrity in to question, there’s no doubt in his mind that relationship would end right there.

“[H]ow can you possibly maintain a relationship when someone has called you dishonest and negligent?”

Vassos says the general proposition remains that you usually need more than one act of misconduct, but in the right case, a single incident can constitute just cause. He notes that employees don’t have to cross the line by 1,000 miles; they just have to cross the line.

Minken says whether a single incident is sufficient will depend on the type of conduct; if it is egregious, then one act of misconduct can be enough.

Another issue at trial was whether Bennett was an employee or an independent contractor.

The trial judge noted the question was whether Bennett was engaged to perform services as a person in business on her own account. In determining that issue, the court considered such factors as what control the employer had over her work activities; whether she provided her own equipment; whether she hired her own helpers; the degree of financial risk she took; and her opportunity for profit from performing her work.

Valin concluded Bennett was an employee and not running her own business. Thus, she was entitled to reasonable notice of termination, in the absence of just cause for dismissal. This issue wasn’t addressed on either of the appeals.

In such circumstances, where a young lawyer is working for a more experienced one, Vassos was not surprised the trial judge found that Bennett was an employee. He says the more junior the lawyer and the more control the senior lawyer has over the junior’s work, the more likely the court will find the junior is an employee or dependent contractor.

The judge’s finding also didn’t surprise Minken. He says, however, that in other situations, lawyers may be found to be independent contractors. He says courts have to look at the issue of what the cause was and the lawyer’s year of call. What may be forgiven of a lawyer with six months experience is quite different from someone with six years of experience.

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