2008 BCSC 954 Van Der Meij v. Victoria Immigrant and Refugee Centre Society

Before: The Honourable Madam Justice Bruce

Reasons for Judgment

Counsel for the Plaintiff	M.S. Frost
Counsel for the Defendant	A.P.M. Berns
Date and Place of Trial/Hearing:	June 30, July 2, 3, and 4, 2008
	Victoria, B.C.

INTRODUCTION

[1] This is an action for wrongful dismissal. The plaintiff, Ms. Van Der Meij, was employed by the defendant society as a settlement coordinator from December 1, 1996 until October 11, 2005. The society maintains the plaintiff resigned from her employment on or about September 25, 2005 and that her resignation was accepted by letter dated October 11, 2005. In the alternative, the society alleges just cause for the plaintiff’s dismissal which is particularized as “insubordination, breach of trust, loss of confidence, and insolence.”

[2] The letter of dismissal dated October 11, 2005 sets out the basis for the dismissal and the reason for the society’s belief that Ms. Van Der Meij had resigned as follows:

1. You have indicated in the email you sent to Board of Directors and Executive Director that “I have been compromised in every regard and cannot function in the current climate”. The Society cannot keep an employee who cannot function in its current working environment and therefore, we treat your email as a resignation which we accept.

2. You have breached the trust placed on you as the program coordinator responsible for the staff of the … [society] when you have attempted to utilize a client’s alleged complaint in order to undermine the position of one of your staff. This conduct is tantamount to blackmail and thus incompatible with the policies and philosophy of VIRCS.

3. You have engaged in conduct of insubordination and defiance of your supervisor’s instructions during your meeting with the Executive Director on September 22, 2005. During the same meeting you became belligerent and tried to intimidate the Executive Director just because he disagreed with you with respect to an employee of the organization.

4. You have written an email to the Board of Directors, in which you have made some serious but baseless allegations against the Executive Director. You claimed that the Executive Director was irate and disrespectful toward you when in reality you were the one who was belligerent and combative with the Executive Director. This behaviour has effectively undermined the trust between you and your supervisor and therefore you have compromised the organization’s confidence in you as an employee.

[3] There are three issues in dispute:

1. Did the plaintiff’s letter of September 25, 2005 addressed to the Board of Directors and the Executive Director constitute a resignation from employment?

2. If the plaintiff did not resign from her employment, did the society have just cause for her termination without notice?

3. If the plaintiff did not resign and there was no just cause for her termination, what notice period is reasonable in all of the circumstances?

SUMMARY OF THE EVIDENCE

[4] The society is a non-profit organization primarily funded by the federal and provincial governments to provide services to immigrants and refugee claimants who come to reside in the Greater Victoria area. The society provides a wide variety of services within three primary departments: settlement, employment, and English as a second language (ESL). Each of these departments is supervised by a coordinator who, in turn, reports to the executive director.

[5] The society was formed in 1988 by three founding members who managed its operations as a volunteer board of directors. There were no employees at this time; the society relied exclusively on volunteers. One of the founding members of the society is Mr. Carlos Gaete. In addition to being a member of the board of directors, Mr. Gaete was the first executive director for the society. He still occupies that position today.

[6] Over the years the society grew from a strictly volunteer organization to its present size of twenty-six employees. In addition, the society has over three hundred volunteers, practicum students, and members. The board of directors still oversees the work of the society but its day to day functioning, including management of staff, is entirely within Mr. Gaete’s authority and control. Although he will consult with the board of directors in appropriate circumstances, Mr. Gaete has sole authority to hire and terminate employees.

[7] Ms. Van Der Meij was first employed by the society on December 1, 1996 as the coordinator for the settlement department. She came to the society initially as a new immigrant to Canada seeking the services of an employment counsellor. Before coming to Canada Ms. Van Der Meij worked in Africa as a tour guide, a teacher, and in the development field generally. Originally from the Netherlands, Ms. Van Der Meij held various administrative positions from 1977 to 1994, including Management Assistant at Matrix Consultants, Management Secretary for Air Products Nederland Ltd., Editor/Head of Secretariat CDP (Consultants for Development Programs), and secretary to the Mayor of the Municipality of IJsselstein. She was also a teacher and a translator in the Netherlands. Ms. Van Der Meij is fluent in Dutch and English and has a strong working knowledge of French, Kiswahili, and German.

[8] Ms. Van Der Meij’s job with the society as coordinator of the settlement department involved supervising and evaluating the work of four settlement department staff, preparing funding proposals for the department, attending conferences on behalf of the society, and organizing workshops addressing topics relevant to new immigrants and refugee claimants. She also handled her own client caseload.

[9] Within the settlement department, the services provided to clients include information and assistance relating to immigration and refugee claims, housing, health care, education, finance, legal rights, social benefits, citizenship, travel, interpretation and translation. The settlement workers act as an informational source to clients and also help them to manoeuvre through government bureaucracies. They fill out forms, translate documents, help the clients to write letters, and generally do whatever they can to make the new immigrant’s settlement in Victoria easier.

[10] It was generally agreed that the settlement department staff were burdened by a very heavy caseload and constantly plagued with funding shortfalls. While the number of clients increased, the funding available for the work provided by the settlement department never kept pace with the demand for its services. The employees found themselves stressed to the maximum by the often overwhelming workload.

[11] While Mr. Gaete worked closely with the coordinators, including Ms. Van Der Meij, on matters related to the organization as a whole and specifically with respect to funding proposals, he left the coordinators to deal with all their department’s human resource issues on their own. Mr. Gaete’s policy was not to interfere with the coordinators or to second guess their judgment about issues involving the staff they supervised.

[12] It was also acknowledged that Ms. Van Der Meij was very good at her job. She worked an average of 50 hours per week while being paid for 37.5, the board of directors nominated her for the YWCA Woman of Distinction award in 2000 and 2001, and she dedicated herself wholeheartedly to the welfare of the society’s clients and the enhancement of the society’s work in this field. Mr. Gaete testified that until the events giving rise to Ms. Van Der Meij’s dismissal, he had 100% confidence in her ability to do her job in every respect. Mr. Gaete had never had occasion to impose a disciplinary warning for any misconduct and Ms. Van Der Meij certainly never behaved toward Mr. Gaete in a disrespectful, insubordinate, or aggressive manner. In turn, Mr. Gaete believed he had a very good rapport with Ms. Van Der Meij; he had always treated her with respect and they had a cordial working relationship.

[13] On the other hand, there were some employees within the settlement department who had difficulty working with Ms. Van Der Meij and disliked her aggressive management style. Two employees from the settlement department testified about their experience with Ms. Van Der Meij as a supervisor: Ms. Nassim Hamed and Ms. Linda Yeend.

[14] Ms. Yeend was employed by the society as a settlement counsellor from 1999 until April 2003 when she went on stress leave. Ms. Yeend was re-employed by the society in November 2007 in the same capacity. Ms. Yeend and Ms. Van Der Meij became friends as well as coworkers. They socialized after work and got to know each other’s families. Ms. Yeend testified that in or about 2001 she began to notice that Ms. Van Der Meij was not a team player; she took credit for the department’s successes and blamed the other employees and volunteers when things went wrong. She testified that Ms. Van Der Meij would get very angry at her staff and treat them as if they had no worth. This created a very stressful atmosphere in the department. Ms. Yeend felt that no one would take her seriously if she complained about Ms. Van Der Meij. In particular, Ms. Yeend felt that Mr. Gaete would never support her against Ms. Van Der Meij because he did not have the skills to deal with staff issues and gave the impression that he did not care about the employees. Mr. Gaete also thought so highly of Ms. Van Der Meij that Ms. Yeend believed she would not be taken seriously in her complaints.

[15] As a consequence of the climate in the workplace, Ms. Yeend took stress leave due to exhaustion and ended her friendship with Ms. Van Der Meij. She at no time disclosed the reason for leaving work to Ms. Van Der Meij or anyone else in the society. Ms. Yeend also accepted Ms. Van Der Meij’s assistance in obtaining employment insurance sick leave benefits. While she acknowledged the workload was heavy in the settlement department, Ms. Yeend testified that it was the stress of working under Ms. Van Der Meij that led to her medical leave.

[16] Ms. Van Der Meij was genuinely taken aback by Ms. Yeend’s evidence. She believed they had remained close friends for about two years after Ms. Yeend left work. Ms. Van Der Meij thought their friendship ended when she and her husband bought a house that was clearly beyond Ms. Yeend’s standard of living. She did not, however, deny that she had an aggressive management style as described by Ms. Yeend.

[17] Ms. Hamed began her employment as a settlement department counsellor in September 2003. She testified that Ms. Van Der Meij was a perfectionist and spoke to her staff rudely and abusively. According to Ms. Hamed, Ms. Van Der Meij was overly critical of errors; she chastised employees with a raised voice and shook her finger in their faces. Ms. Hamed did not inform Ms. Van Der Meij that she had a problem with her behaviour in the workplace because she was afraid of the consequences for her employment. While Ms. Hamed testified that she never made mistakes at work, it appears that Ms. Van Der Meij often criticised her work performance. Again, while Ms. Van Der Meij obviously believed Ms. Hamed was making serious work performance errors, she did not deny the aggressive management style described by Ms. Hamed.

[18] In the late spring and early summer of 2005 the settlement department workload increased significantly because Ms. Van Der Meij was spending all of her time preparing a funding proposal for the provincial government and her caseload had to be taken over by the other counsellors. When Ms. Van Der Meij completed the funding proposal and returned to her regular routine in or about August 2005, she discovered that Ms. Hamed had made some work performance errors. Because Ms. Van Der Meij perceived these errors as characteristic of an ongoing problem with Ms. Hamed’s work, she raised the matter with Mr. Gaete. As a result of discussions with Mr. Gaete, it was agreed that Ms. Hamed would receive a letter of warning. Ms. Van Der Meij submitted the letter of warning for Mr. Gaete’s approval; however, he did not approve the draft for several days. In the meantime Ms. Van Der Meij met with Ms. Hamed to discuss the errors in her work.

[19] What occurred during the meeting with Ms. Hamed is in dispute. Ms. Hamed testified that Ms. Van Der Meij was so aggressive in her criticism that she felt physically threatened by her supervisor. Ms. Van Der Meij testified that it was Ms. Hamed who became aggressive toward her and refused to discuss the errors in her work. Ms. Hamed wrote a letter to Mr. Gaete indicating that she did not feel safe in the workplace as a result of Ms. Van Der Meij’s abusive and physically aggressive behaviour toward her. Ms. Van Der Meij spoke to Mr. Gaete about what she perceived as inappropriate behaviour by Ms. Hamed during their meeting and then drafted a second warning letter. Ms. Van Der Meij testified that Mr. Gaete reviewed the second warning letter; however, he denied approving the letter before it was given to Ms. Hamed. This second warning letter was significant to Ms. Hamed because the society’s policy was to terminate employees after three warnings in one year. As it turned out both warning letters were given to Ms. Hamed on the same day, on or about August 12^th. To soften the warning letters Ms. Van Der Meij advised Ms. Hamed that she would tear up the letters if her work performance improved over the next three months.

[20] When Ms. Hamed presented her letter to Mr. Gaete he did not believe her accusations and felt she was exaggerating Ms. Van Der Meij’s conduct. Further, although he discussed the letter with Ms. Van Der Meij generally, he did not show her the letter because of Ms. Hamed’s request to keep her complaint confidential. Finally, Mr. Gaete thought he had resolved the issue by issuing a directive that Ms. Van Der Meij always have a third party present when she met with Ms. Hamed. He also sent a very conciliatory letter to Ms. Hamed urging her to work with Ms. Van Der Meij to improve their relationship and restore the trust between them.

[21] The relationship between Ms. Hamed and Ms. Van Der Meij did not improve. Mr. Gaete’s directive that a third party always be present during their meetings was impractical because there was no other person available to act as a neutral witness. Moreover, the funding proposal submitted to the provincial government was denied and the allocation of existing funding as between the counsellors in the settlement department became an issue between Ms. Van Der Meij and Mr. Gaete. Ms. Van Der Meij felt that the hours of their only Mandarin speaking counsellor should be increased because of an influx of Chinese immigrants to Victoria but this could only be accomplished at the expense of the hours worked by other counsellors, including Ms. Hamed. Again, the evidence on this point is in dispute. Mr. Gaete testified that it was Ms. Van Der Meij who wanted to reduce Ms. Hamed’s hours while Ms. Van Der Meij testified that it was Mr. Gaete’s suggestion and that she protested any reduction due to Ms. Hamed’s precarious financial circumstances as the sole breadwinner for her family.

[22] What brought the situation to a head was the discovery of another error by Ms. Hamed. In late September 2005 Mr. Akmimana, a client of Ms. Van Der Meij’s, raised with her a problem that had been created by inaccurate advice given by Ms. Hamed. Ms. Hamed had taken over this client while Ms. Van Der Meij was busy with the provincial government funding proposal. Mr. Akmimana was a failed refugee claimant and was now the subject of a departure order. Ms. Hamed attended a pre-departure meeting with the Immigration department as a support person for Mr. Akmimana. During this meeting Ms. Hamed counselled Mr. Akmimana to have the federal government pay his airfare back to his country of origin and he accepted this advice. Unfortunately, when the government pays for the ticket, the departure order is changed to a deportation order automatically. Once a person has been deported from Canada, the chances of returning at a later date are substantially reduced. After learning of this inappropriate advice, Ms. Van Der Meij did what she could to correct the error.

[23] When Ms. Van Der Meij raised this performance problem with Mr. Gaete, he indicated that the client would have to write a letter to confirm the erroneous advice given by Ms. Hamed. Mr. Gaete was concerned that this would result in a third letter of warning for Ms. Hamed and, according to the society’s policy, this may result in her dismissal. He had consulted with the society’s lawyer and together they had agreed that a letter from the client would be required.

[24] As a consequence of Mr. Gaete’s direction, Ms. Van Der Meij met with Mr. Akmimana and he reluctantly agreed to provide a letter of complaint. Because Mr. Akmimana’s first language was not English, Ms. Van Der Meij composed the letter for him. Mr. Akmimana reviewed the letter and signed it. On the afternoon of September 22, 2005 Ms. Van Der Meji submitted the letter to Mr. Gaete for his perusal. What occurred during this meeting is in dispute.

[25] Ms. Van Der Meij testified that by this time Mr. Gaete wanted to terminate Ms. Hamed and the letter from Mr. Akmimana was critical for this purpose. Ms. Van Der Meij was taken aback by Mr. Gaete’s attitude particularly because no one had discussed Mr. Akmimana’s situation with her to obtain her side of the story. She handed Mr. Gaete the letter but he did not read it immediately. Mr. Gaete said he wanted to email the Akmimana letter to the society’s lawyer. Ms. Van Der Meij responded that the client had insisted on the letter remaining confidential and that only a copy to her and Mr. Gaete would be permitted. Mr. Gaete suggested the letter could be faxed to the lawyer but Ms. Van Der Meij said this was the same thing. Ms. Van Der Meij was reluctant to disagree with Mr. Gaete because he was in charge but he was becoming very aggressive and irate with her; he insisted that the lawyer be given a copy of the letter. Ms. Van Der Meij suggested he be given the letter at a board meeting coming up the next week but Mr. Gaete said this would be too late.

[26] Ms. Van Der Meij was feeling very uncomfortable in this meeting; she felt her chest tighten and her heart began to race. Because she has a congenital heart problem, Ms. Van Der Meij felt she might be having a heart attack. She told Mr. Gaete that she was not well and he sneered at her and laughed. She rushed out of the office and went out of the building to her office. She told the staff that she was not well, cancelled her appointments, and walked several blocks to her car feeling dizzy and with her heart pounding. She went to a drop-in medical clinic and was prescribed medication for anxiety attacks. From this point onward Ms. Van Der Meij went on sick leave. The next day she went to see her own doctor and was later diagnosed with shingles.

[27] Mr. Gaete testified that the main purpose for the meeting was to discuss Ms. Van Der Meij’s request to decrease Ms. Hamed’s hours. He put the Akmimana letter aside and began to discuss this issue with Ms. Van Der Meij. Several times Ms. Van Der Meij asked him to read the letter and she became very aggressive when Mr. Gaete did not comply with her demand. She was told to calm down and appeared to respond somewhat. As Mr. Gaete read the letter he realized that it had been written by Ms. Van Der Meij and not by the client. He said nothing to Ms. Van Der Meij because he was embarrassed for her. It was Mr. Gaete’s view that she had written the letter to build a case against Ms. Hamed for dismissal and had misused a client to accomplish this purpose. Mr. Gaete wanted to send the letter to the society’s lawyer to obtain an opinion about Ms. Van Der Meij’s actions; however, he did not advise her of this purpose. When Mr. Gaete said the letter would be emailed to their lawyer, Ms. Van Der Meij very aggressively said no because it would be a breach of confidentiality for the client. She also refused to allow the letter to be faxed and became very aggressive when Mr. Gaete said he wanted the letter to go to the lawyer that day. Mr. Gaete believed her response was disrespectful and he said to Ms. Van Der Meij, “If you treat me this way, I wonder how you treat your staff.” Ms. Van Der Meij became very upset and dropped her papers. She picked them up and quickly walked out of the office without excusing herself.

[28] Mr. Gaete denied that Ms. Van Der Meij expressed concern about her health or said that she was having a heart attack. He noted no symptoms such as sweating or shortness of breath. His concern when she left the meeting was that this was the first time in nine years of employment that Ms. Van Der Meij had behaved like this toward him; this was a person he did not know.

[29] On September 25, 2005 Ms. Van Der Meij wrote a letter to the Board of Directors and to Mr. Gaete setting out the difficulties she was having in the workplace that she believed had caused her illness. The letter’s recital says, “Position as coordinator and settlement worker impossible, resulting in illness.” Ms. Van Der Meij advised the board that the most important problems leading to her illness involved funding, consistency in leadership of the organization, and ethical standards. In regard to funding, Ms. Van Der Meij reiterated the changes that she had suggested to the board that had never been implemented and which led to her working over 60 hours per week without any appreciation from Mr. Gaete. The letter also went into the details concerning Ms. Hamed’s situation, the letters of warning given to Ms. Hamed, and Mr. Gaete’s refusal to allow her to see Ms. Hamed’s letter of complaint against her:

In my opinion, acting out of fear, Carlos refused to show me Nasim’s letter. Although he asked me for input for his reply, he also refused to show me the final version of what he wrote back to her. This led to an impossible situation in the Settlement Programme, where there is now only the barest communication between Nasim and I. Carlos advised me, and I agreed with this, not to talk to Nasim at all unless a third party is present, due to the fact that she has misrepresented earlier communications presumably in order to throw up a smoke screen so as her functioning is no longer discussable. Due to the weak response by Carlos, she has succeeded in this. I chose to be quiet about the whole thing as I was about to go on holiday, was working many hours to try to correct her mistakes and prevent damage to clients, my own workload was suffering, and moreover I felt terribly compromised by Carlos in my functioning as a coordinator.

[30] Ms. Van Der Meij also discussed the Akmimana letter and provided the board with her version of what occurred with Mr. Gaete during the meeting of September 22^nd. She described the anxiety attack while in the office and Mr. Gaete’s lack of concern; she also described her current health situation and said, “I am not well enough to return to work, especially given the terrible relations with Carlos. I must also report here that Carlos never once went to Sandy or check in any other way whether I was alright.”

[31] In conclusion, Ms. Van Der Meij’s letter said:

I feel that I have been compromised in every regard and cannot function in the current climate. My workload is far beyond anything anyone can handle, my position as coordinator has been compromised by Carlos’ unilateral actions that he has kept secret from me, I can no longer take responsibility for the work of others in the programme since my hands have been tied in dealing with it, Carlos has become irate with me, his stated intention to violate a client’s right to confidentiality, this in turn compromising the confidence I had built with my client, and moreover he has shown a cold and uncaring disregard for my health.

[32] Mr. Gaete considered this letter had irretrievably destroyed the trust relationship between him and Ms. Van Der Meij. While he could forgive Ms. Van Der Meij’s misconduct during the September 22^nd meeting, as well as her breach of trust in writing the letter for Mr. Akmimana, this letter to the Board of Directors compromised his confidence in her as an employee. Mr. Gaete could no longer work with Ms. Van Der Meij in light of her opinions of him and the fact she had made such comments about him to the board.

[33] On September 23^rd Mr. Gaete’s staff met with Mr. Akmimana and he ultimately withdrew the letter written by Ms. Van Der Meij. He did not testify, but the letter said, “I thought it [the letter] was not according to my conscience.”

[34] Ms. Van Der Meij was too ill to look for work until late January or early February 2006. Because of the nature of her work experience, the options open to her were quite limited. She carried out a very thorough job search and there is no issue concerning her attempts to mitigate. Ms. Van Der Meij found some temporary part time work with an organization providing services to immigrants similar to that provided by the society. She also went back to school and obtained a certificate that entitles her to represent immigration and refugee claimants up to the Appeal Division of the Immigration and Refugee Board and to charge a fee for this service. She began her own business and did a wide variety of jobs, including landscaping, and recently began working steadily for a competing organization to the society providing settlement advice and assistance to new immigrants.

ARGUMENT

[35] The plaintiff argues that the onus rests with the defendant to prove just cause for the dismissal and that it has failed to do so. The plaintiff maintains the definition of cause found in Port Arthur Shipbuilding Co. v. Arthurs, [1967] 2 O.R. 49 (C.A.), rev’d [1969] S.C.R. 85, still governs wrongful dismissal actions. At.¶11, Schroeder J.A. (dissenting) says:

If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer’s business, or if he has been guilty of wilful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee.

[36] The plaintiff maintains that up until September 22^nd the employer had no criticism of her work performance. Further, it was the constant and increasing pressure due to the excessive workload that caused a breakdown in the relationship between Ms. Van Der Meij, Mr. Gaete, and the other settlement counsellors. Things were brought to a head when Ms. Van Der Meij found a serious error in Ms. Hamed’s performance upon her return from vacation. Because of Mr. Gaete’s directive that she not meet alone with Ms. Hamed, Ms. Van Der Meij could not address the performance issue and was forced to consult with Mr. Gaete. On the other hand, Mr. Gaete wanted to reduce Ms. Hamed’s hours and ultimately terminate her employment which was at odds with what Ms. Van Der Meij wanted to occur. This conflict led to a confrontation over Mr. Akmimana’s letter during the meeting of September 22^nd.

[37] The plaintiff urges the court to accept her version of the events during the September 22^nd meeting as more consistent with the probabilities. She also refers to the record of the meeting composed shortly afterwards and the fact that Mr. Gaete only had a selective recollection of the meeting. She also asks the court to accept her evidence that it was Mr. Gaete who wanted to terminate Ms. Hamed’s employment and that she defended Ms. Hamed’s position.

[38] Ms. Van Der Meij says the letter of September 25^th may have been a reason for terminating her employment but it did not constitute cause for dismissal without notice. First, the plaintiff argues that in fairness the board of directors should have obtained her version of the events before approving the dismissal. Second, the plaintiff says only a warning letter would have been appropriate because of the overwhelming stress in the workplace and because she was ill at the time. Third, the plaintiff maintains that an employee is entitled to criticise her supervisor and should not be terminated solely for this reason.

[39] Ms. Van Der Meij argues none of the other stated reasons for her dismissal have any merit. There is no evidence that the letter from Mr. Akmimana contained erroneous information and it was Ms. Van Der Meij who had responsibility for addressing performance problems with her staff. She also denies any belligerent misconduct during the meeting of September 22^nd. Further, the plaintiff says that the allegation of cause was clearly an afterthought because the pleadings were only amended in this regard after the notice of trial was served.

[40] The plaintiff also argues that the letter of September 25, 2005 cannot be interpreted as a resignation. In support of the proposition that all the relevant circumstances must be considered to determine if there was a resignation the plaintiff relies upon Assouline v. Ogivar Inc., [1991] B.C.J. No. 3419 (S.C.) (QL).

[41] On the matter of notice, the plaintiff argues that in all of the circumstances twelve months would have been a reasonable notice period. She points to her age (she was 55 when terminated), the nature of her employment with the society, her limited range of job experience in Canada, and the corresponding difficulty obtaining employment, as circumstances relevant to determining the notice period. She also relies upon Ansari v. BC Hydro (1986), 2 B.C.L.R. (2d) 33 (S.C.), aff’d (1986), 55 B.C.L.R. (2d) xxxiii; Sjerven v. Port Alberni Friendship Centre (1999), 67 B.C.L.R. (3d) 379 (S.C.); Seeley v. Bob Brown Pontiac Buick GMC Ltd., 2002 BCPC 500; Kincses v. 32262 B.C. Ltd. (c.o.b. Macey Neon), [1998] O.J. No. 6582 (Gen. Div.) (QL); and Maguire v. Sutton (1998), 34 C.C.E.L. (2d) 67 (S.C.)

[42] The defendant argues that Ms. Van Der Meij’s actions made it impossible for her to continue working with Mr. Gaete. An employer cannot be forced to pay severance pay when this occurs. An employer has a right to give working notice when it wishes to terminate an employee; however, if an employee’s conduct has led to a complete breakdown in the trust relationship, it would undermine the employer’s operation to give working notice. The only choice for the employer is to terminate summarily.

[43] The defendant says that its cause for dismissal is a breach of trust and the duty of loyalty owed by an employee to her employer: Durand v. Quaker Oats Co. of Canada (1990), 45 B.C.L.R. (2d) 354 (C.A.).

[44] The defendant argues that regardless of whose version of the events the court accepts, it is apparent that Ms. Van Der Meij questioned Mr. Gaete’s authority to direct the business of the society and refused a direct order that the Akmimana letter be sent to the society’s lawyer. Further, the defendant argues that Mr. Gaete’s version of the events is more credible and that Ms. Van Der Meij’s actions subsequent to the meeting are inconsistent with her being seriously ill.

[45] The defendant maintains the letter of September 25^th was an attempt to undermine Mr. Gaete’s position with the board of directors; it contained no suggestions for improvement and Ms. Van Der Meij did not first bring these concerns to Mr. Gaete’s attention or give him an opportunity to address her complaints and improve their relationship. Moreover, the plaintiff has never apologized for this letter or retracted any of her stated criticisms.

[46] The defendant also argues the letter of September 25^th contains an implied resignation. In this letter the plaintiff says she cannot work with her boss and this has made her job impossible. Applying the reasonable person test, the defendant argues the circumstances all point to a stated intention to resign.

[47] In addition to the September 25^th letter, the defendant says Ms. Van Der Meij gave cause for summary dismissal when she was insubordinate and belligerent to Mr. Gaete and refused his directions, when she composed Mr. Akmimana’s letter in an attempt to undermine Ms. Hamed’s employment, and when it was discovered that she had a poor relationship with the staff.

[48] In support of its argument, the defendant relies upon Christensen v. Armtec, [1996] B.C.J. No. 1829 (S.C.) (QL); Bennett v. Cunningham, [2006] O.J. No. 4446 (Sup. Ct. Jus.) (QL); Stein v. BC (Housing Management Commission) (1992), 65 B.C.L.R. (2d) 181 (C.A.); Chaffee v. Columbia Dodge (1967) Ltd., 2000 BCSC 310; and Eichenberger v. Heath Consultants Limited, [1997] B.C.J. No. 2682 (S.C.) QL.

[49] In the event the court finds the defendant did not have just cause for dismissal, it is argued that the 16 weeks Ms. Van Der Meij was ill should be deducted from the notice period. The plaintiff relies upon Dunlop v. BC Hydro (1988), 32 B.C.L.R. (2d) 334 (S.C.) as contrary to this proposition. The defendant also asks the court to consider that the plaintiff found new employment without difficulty.

DECISION

1. Did Ms. Van Der Meij Resign from Her Employment?

[50] Whether or not an employer has voluntarily resigned from employment is a question of fact to be decided objectively based upon what a reasonable person would have understood from the words used by the employee, in the context of all the surrounding circumstances, including the particular industry or workplace: Maguire at ¶45 to 47. In this case the society argues Ms. Van Der Meij’s letter of September 25^th was tantamount to a resignation because she claimed her job was rendered impossible by Mr. Gaete’s conduct.

[51] As I read the letter of September 25^th, it was Ms. Van Der Meij’s intention to register a formal complaint to the board of directors about the problems she was experiencing in the workplace, and in particular, with Mr. Gaete’s management of her department. Ms. Van Der Meij did not expressly stipulate that she was resigning because of these perceived problems. To the contrary, she expected a further dialogue about her complaint by inviting the board of directors to contact her by letter to obtain additional information. The letter was essentially an expression of her dissatisfaction with the conditions under which she was forced to work and a plea for assistance from the board of directors to deal with the problems she had raised.

[52] In addition, there was also nothing in Ms. Van Der Meij’s conduct after September 25^th, and before she received the letter of dismissal on October 11^th, that would have led the society to believe she had resigned. Indeed, her subsequent actions appear to confirm that Ms. Van Der Meij believed she was still employed. She sent a doctor’s note to the society requesting time off for medical reasons, and she asked the human resources department to forward her record of employment immediately to facilitate her application for sick leave benefits.

[53] In my view, the court should not conclude that an employee has resigned without clear and cogent evidence. This is particularly true when an employer asks the court to infer from the circumstances that an employee has resigned from her employment. In this case Ms. Van Der Meij’s letter did not contain words that amount to an express resignation and her subsequent conduct does not support an intention to resign. Further, there are no other circumstances that would support the inference urged by the society. While the board of directors may have hoped that Ms. Van Der Meij had resigned, because such an interpretation would have made her departure far simpler and less difficult for them, I am unable to agree that this was Ms. Van Der Meij’s intention.

2. Did the Society Have Just Cause to Summarily Dismiss Ms. Van Der Meij from Employment?

[54] The society set out three grounds for dismissal in its letter of October 11, 2005. The first ground involves an allegation that Ms. Van Der Meij committed a breach of trust by attempting to use a client’s complaint to undermine Ms. Hamed’s job with the society. Mr. Gaete used the words “tantamount to blackmail” to describe her misconduct. In my view the society has failed to prove a breach of trust in the circumstances surrounding the Akmimana letter. There is no evidence that the substance of the complaint addressed in the letter signed by Mr. Akmimana on September 22^nd was in any way inaccurate. The fact that he subsequently withdrew the letter because it was against his conscience is capable of supporting other reasonable alternative interpretations. One cannot conclude from this retraction that the letter itself was false, inaccurate or misleading. Further, it was part of Ms. Van Der Meij’s supervisory duties to discipline the settlement counsellors and to bring performance problems to their attention and Mr. Gaete had approved at least one letter of warning in regard to Ms. Hamed’s work performance. It was also Mr. Gaete’s instruction that the client’s complaint would need to be in writing according to the advice he had received from the society’s lawyer.

[55] There is no question that Ms. Van Der Meij wrote the letter for Mr. Akmimana and that Mr. Gaete was very concerned about her actions in doing so. Nevertheless, there is nothing in the evidence to suggest that Ms. Van Der Meij acted for an improper purpose. Mr. Akmimana’s English skills were poor; it was not his first language. I accept Ms. Van Der Meij’s evidence that she was simply helping him to put into words the substance of his complaint. In addition, it is not apparent from the evidence that Ms. Van Der Meij intended to take any action against Ms. Hamed as a result of the error she made in the advice given to Mr. Akmimana without first obtaining Mr. Gaete’s approval.

[56] The second ground for dismissal involved an allegation that during the meeting of September 22^nd Ms. Van Der Meij was belligerent, insubordinate, and defied Mr. Gaete’s instructions. The society also alleged that Ms. Van Der Meij tried to intimidate Mr. Gaete because she disagreed with his views about an employee. Assuming the accuracy of Mr. Gaete’s version of the events given in evidence, I am not satisfied that Ms. Van Der Meij’s conduct during the meeting would give rise to cause for immediate dismissal. Ms. Van Der Meij had worked for the society for close to nine years; she had been an exemplary employee and had never been reprimanded or warned about any aspect of her job performance. She had never raised her voice to Mr. Gaete before this occasion and had never been insubordinate in the past.

[57] Moreover, the dispute that led to the alleged misconduct by Ms. Van Der Meij concerned the confidentiality of a letter that a client had given to her on strict terms that it would not be copied to anyone except Mr. Gaete as executive director. There is no dispute that Ms. Van Der Meij devoted herself to the society’s clients and treated them as her first priority.

[58] In these circumstances, it would have been incumbent upon Mr. Gaete to provide a warning to Ms. Van Der Meij that her behaviour was inappropriate and that further incidents of this nature may result in her immediate dismissal before taking the drastic step of terminating her employment. Mr. Gaete implicitly acknowledged this would have been the appropriate course of action when he testified that he could have forgiven Ms. Van Der Meij for her misconduct during the meeting had she not sent the subsequent letter to the board of directors.

[59] Turning to the final ground for dismissal, the society alleges that Ms. Van Der Meij’s letter to the board of directors contained serious and baseless complaints against Mr. Gaete. Further, the society alleges that by sending this letter to the board, rather than bringing the complaints to Mr. Gaete’s attention directly, Ms. Van Der Meij effectively destroyed the trust necessary to her continued employment. Mr. Gaete could no longer work with her and had no confidence in her as the coordinator of the settlement department.

[60] I accept as a general proposition that an employee should be entitled to criticize her superiors without fear of immediate dismissal. However, in some circumstances criticism can undermine the employment relationship and render it impossible for the employee and her manager to continue working together. When this occurs it is clear that the employee’s conduct will constitute just cause for immediate dismissal.

[61] Where an employee’s complaint or criticism about her manager is provoked by unreasonable conduct or where the complaints are reasonably justified on the facts the employer may dismiss the employee; however, the obligation to give proper notice or pay in lieu of notice remains. The manner in which the employee voices her criticism of her manager is also relevant. If the criticism is disrespectful in tone or language or is otherwise irreconcilable with continued employment then the employee’s actions may give rise to cause for immediate dismissal regardless of whether the complaints are justified.

[62] In this case the society argues that both the allegations contained in the letter and the way Ms. Van Der Meij chose to voice her complaints about Mr. Gaete warrant immediate dismissal. Whether or not Ms. Van Der Meij’s complaints about Mr. Gaete were accurate or justified, it is my view that her decision to send the September 25^th letter to the board of directors, without first attempting to resolve the problems she identified with Mr. Gaete directly, effectively destroyed the employment relationship.

[63] The September 25^th letter accused Mr. Gaete of rendering it impossible for Ms. Van Der Meij to do her job properly; her accusations were extremely serious and covered every aspect of their working relationship. This letter would have forced the board of directors to make a choice between retaining Mr. Gaete as executive director or Ms. Van Der Meij as the settlement coordinator because it was clear that they could no longer work together. It was apparent from this letter that Ms. Van Der Meij was extremely unhappy in the workplace and that she had no respect for Mr. Gaete’s management abilities, his ethical standards, or his ability to handle labour relations problems. Given the serious nature of the allegations made against Mr. Gaete and the depth of dissatisfaction voiced by Ms. Van Der Meij about his management of her department, it was incumbent upon her to raise these concerns with him directly before going to the board of directors because otherwise there would be no hope of salvaging their working relationship.

[64] Further, it cannot be said that any attempts to resolve these problems directly with Mr. Gaete before making the complaint to the board of directors would have been futile. Apart from the question of funding and Ms. Hamed’s work hours, Ms. Van Der Meij does not appear to have discussed with Mr. Gaete her serious concerns about his handling of the problems she raised in her complaint letter before bringing her complaints to the attention of the board of directors. Mr. Gaete was unaware of Ms. Van Der Meij’s dissatisfaction with his management of the society generally and the settlement department in particular. Importantly, he was unaware that Ms. Van Der Meij felt gravely compromised in her ability to supervise Ms. Hamed as a result of the way in which he had handled the dispute between this employee and Ms. Van Der Meij. Thus there is no evidence at all that Mr. Gaete would have rebuffed Ms. Van Der Meij’s attempt to explain her concerns or that he would have dismissed them as groundless.

[65] In addition, assuming that Ms. Van Der Meij’s version of the September 22^nd meeting is accurate, there is no evidence that Mr. Gaete had behaved in such an aggressive and uncaring manner on any prior occasion or that their relationship was anything other than respectful and cordial up to this time. In these circumstances, and out of respect for Mr. Gaete’s position as the executive director for the society, it was incumbent upon Ms. Van Der Meij to seek an apology directly from him or at least an acknowledgement that his aggressive response to her concern about the confidentiality of Mr. Akmimana’s letter was inappropriate. They appeared to have a good, solid working relationship and there was nothing in Mr. Gaete’s past behaviour that would have led Ms. Van Der Meij to believe this would have been a fruitless exercise.

[66] I am also satisfied that the language and tone of the September 25^th letter, insofar as Ms. Van Der Meij’s complaints about Mr. Gaete are concerned, were disrespectful, pejorative, and unnecessarily inflammatory. Several times Ms. Van Der Meij referred to Mr. Gaete as acting or taking no action based on fear and weakness. Instead of describing the circumstances in a neutral manner to allow the board of directors to come to their own conclusions, Ms. Van Der Meij allowed her emotions to creep into her language; she was unreservedly critical of Mr. Gaete’s handling of several workplace issues and pointed to serious flaws in Mr. Gaete’s character and ability to manage as the underlying cause of the problems in the department.

[67] Finally, after considering the viva voce evidence in these proceedings, I am satisfied that Ms. Van Der Meij’s letter to the board of directors was not entirely accurate in terms of her description of what occurred during the meeting of September 22^nd. There is no doubt that Mr. Gaete and Ms. Van Der Meij became involved in a dispute about the Akmimana letter and whether a copy of the letter should be forwarded to the society’s lawyer. I am satisfied, however, that it was Ms. Van Der Meij who became angry and aggressive toward Mr. Gaete and I reject her evidence on this point. There is no evidence that Mr. Gaete had an aggressive management style. While Ms. Hamed and Ms. Yeend believed he was an absentee manager, there is no evidence that in the past he had ever been verbally abusive with Ms. Van Der Meij or any other employee. Ms. Van Der Meij, on the other hand, appears to have been a very aggressive supervisor. Both Ms. Hamed and Ms. Yeend testified that Ms. Van Der Meij often raised her voice when criticising their work performance and used her body language to intimidate them. She wagged a finger in their faces and became verbally abusive. Ms. Van Der Meij did not deny any of this criticism of her management style.

[68] It is also important to consider that it was Ms. Van Der Meij who was vehemently opposed to any further dissemination of Mr. Akmimana’s letter because she felt it was a breach of confidentiality. She was completely devoted to the society’s clients and believed that Mr. Gaete’s actions would compromise Mr. Akmimana’s confidence in her. Ms. Van Der Meij’s letter of September 25^th is a clear indication of how upset and angry she was about Mr. Gaete’s decision to send the letter to the society’s lawyer. In these circumstances, it is difficult to accept that Ms. Van Der Meij did not aggressively voice her opposition to Mr. Gaete’s intended course of action. It is far more likely that she raised her voice in anger and used aggressive body language to intimidate Mr. Gaete, as he testified, because that was her management style. Moreover, why would Mr. Gaete have said to her, “now I understand why [you] had problems with [your] staff, because you talk to them “like that” (as Ms. Van Der Meij said in her Letter of September 25^th at p. 3.), if Ms. Van Der Meij was calmly presenting her arguments against further disclosure of the letter?

[69] I am also satisfied that Ms. Van Der Meij exaggerated her complaints about Mr. Gaete’s response to her sudden illness during the meeting. While in the letter of September 25^th Ms. Van Der Meij says she told Mr. Gaete she thought she was having a heart attack, she testified that she told him she felt ill but only thought to herself that it may be a heart attack. In addition, Ms. Van Der Meij’s behaviour after leaving Mr. Gaete’s office was inconsistent with a belief that she was about to have a heart attack. Instead of getting someone to call 911 or asking her husband, who worked in the same office as Mr. Gaete, to take her to the hospital, Ms. Van Der Meij walked back to her own office, which was in a building next door to Mr. Gaete’s office, cancelled her appointments, walked several blocks to her car, and drove some distance to a walk-in clinic. In my view this course of action is not consistent with someone who has a congenital heart problem and who has just experienced symptoms such as tightness in the chest, pain in the heart region, and dizziness, all of which were described to the board of directors in her letter of September 25^th.

[70] While I have no doubt that Ms. Van Der Meij became ill after the meeting on September 22^nd, her conduct immediately afterwards suggests that the symptoms were not as serious as she described them to the board of directors and to this court. Further, her conduct after the meeting tends to support Mr. Gaete’s evidence that he had no idea of why she so abruptly left the meeting and that it was only later that he discovered Ms. Van Der Meij had taken ill.

[71] In light of these findings of fact, I must conclude that the September 25^th letter was both inaccurate and exaggerated in regard to the meeting of September 22^nd which was by far the most serious complaint raised about Mr. Gaete’s management abilities, his character, and his ethical standards.

[72] In summary, I find the letter of September 25^th gave rise to just cause for Ms. Van Der Meij’s immediate dismissal because it was inaccurate and exaggerated, disrespectful and inflammatory in tone and language, and because it was sent to the board of directors without first giving Mr. Gaete an opportunity to deal with the problems raised and make an effort to salvage the working relationship between himself and Ms. Van Der Meij. In my view both the content of the letter and the manner in which Ms. Van Der Meij brought her complaints to the attention of the board of directors constituted a fundamental breach of the trust relationship between her and Mr. Gaete. It effectively ended the employment relationship because Mr. Gaete could no longer work with someone who had no respect for his management abilities, his character, and his ethical standards.

[73] Ms. Van Der Meij argues that if there was just cause for immediate dismissal, it was vitiated by the failure of the board of directors to seek her version of the events before terminating her employment. I am unable to accept this argument for several reasons. First, Mr. Gaete had the authority to terminate her employment and the board of directors recognized this authority during their meeting of October 3^rd. It would have been redundant for Mr. Gaete to seek clarification of her complaints because he was intimately involved with the incidents and issues described. Second, this is not a case where the employee regretted her actions and at any time sought to apologize to Mr. Gaete. Ms. Van Der Meij testified that her letter was accurate; she made no attempt to retract portions of it. Nor did she express any regret for having sent it to the board of directors. Third, Ms. Van Der Meij’s evidence did not suggest that there was any further information that would have changed the board’s views about her actions. Indeed, the fact that I have found her evidence about the September 22^nd meeting to have been inaccurate and exaggerated would likely have strengthened the board’s belief that her termination was the only possible course of action.

[74] For all of these reasons, I must dismiss the plaintiff’s claim for damages for wrongful dismissal. In view of my conclusions it is unnecessary to address the matter of reasonable notice.

[75] The parties may speak to costs if the issue cannot be resolved.

“The Honourable C. Bruce J.”

Citation:	*Van Der Meij v. Victoria Immigrant and Refugee Centre Society,*
	2008 BCSC 954