An administrator at a Toronto medical office has been awarded 22 months’ notice after she was constructively dismissed following the death of a doctor.
The Ontario Superior Court of Justice said the employer, Respiratory Services Limited (RSL), engaged in “after-the-fact narrative” in an attempt to justify its argument that she wasn’t dismissed, despite the fact it issued an ROE and ended its email with “best wishes.”
35-year career
Christina Miranda was hired by RSL in 1982. She worked for the company for more than 35 years.
RSL was founded by Dr. Emmanuel Lilker. In early 2013, RSL’s shares were sold to a corporation controlled by Dr. Satyendra Sharma, who became president. Dr. Lilker continued to operate his private medical practice at RSL until he passed away on Feb. 15, 2018.
Miranda had no written employment contract. Her job consisted of liasing with patients, making appointments, answering the phone and other typical receptionist-type duties.
After the 2013 sale, she continued her regular duties with Dr. Lilker, and her hourly pay was increased to $34 per hour. Later that year, Dr. Sharma started hiring his own staff, including his wife Angela Sharma and Margarida Soares. Soares took over some of Miranda’s duties after she was hired.
At around the same time, Dr. Lilker reduced his schedule from five days to three days per week. Miranda’s schedule was also reduced from five days to three days. She did not go into the office when Dr. Lilker was absent: In short, her schedule matched his and she took unpaid time off when he was not working.
Her T4 from 2013 to 2017 showed wide fluctuations in wages, from a low of $23,392 in 2013 to a high of $41,170 in 2015.
Those fluctuations came about because Dr. Ilker paid her wages with his own personal cheque.
Miranda said this happened because there was tension between the two doctors over her employment and her salary, and Dr. Lilker paid her directly to de-escalate the situation. She said Dr. Sharma had told her on many occasions that he could not afford to pay her and complained about her hourly rate.
Dr. Lilker’s death
In January 2018, Dr. Lilker took his annual vacation. Miranda also her vacation/unpaid leave in January and February 2018. He planned to return to work in March, and Miranda planned to resume her duties at that time.
On Feb. 15, 2018, Dr. Lilker passed away. Miranda was told of the death by his family. On March 4, Soares called Miranda and said Dr. Sharma wanted to meet with her on March 5 at RSL.
The two sides offered different accounts of what happened at that meeting.
Miranda’s version of events
Miranda said she was told that, in the wake of Dr. Lilker’s death, there was no work for her. Then, she said, Dr. Sharma made a proposal.
He offered continued employment if she agreed to be paid in cash, reduce her schedule to one or two days a week and cut her hourly pay from $34 per hour to $23 per hour. She also said Dr. Sharma advised her to apply for EI benefits to make up the difference in her income.
Dr. Sharma’s version of events
Dr. Sharma said the clinic was in urgent need of a secretary to assist with the transition, but Miranda did not offer to resume working until a new doctor was found.
Instead, he said she asked for an ROE so she could apply for EI benefits.
At no time did he offer to pay her in cash or ask to reduce her hourly wage, he said. At all times, RSL told her she would have to report to work once a new doctor was found.
ROE issued
On March 5, 2018, Dr. Sharma arranged for an ROE to be prepared for Miranda. The code used was shortage of work.
Miranda denied ever asking for an ROE, and said she never told Dr. Sharma she wanted to apply for EI.
On March 8, 2018, she sent an email to Dr. Sharma and Soares. It read in part:
“I have considered your proposal and I can’t accept working only 1-2 days per week with lower salary ($23/hr). For the last 6 years, I have worked 3 days per week, 8 hours per day, at $34/hr and I am happy to continue working under my existing terms. I also can’t accept being paid in cash as this would be fraud. Please advise me in writing whether you will honour my existing employment terms.”
That same day, Dr. Sharma responded stating he did not “give her any proposals,” an ROE had been prepared and there was no work for her “since the doctor you worked for had died.” The ROE was dated March 6 and Miranda received it March 9.
Offer to return
On March 20, 2018, Soares emailed Miranda to let her know that Dr. Ibrahim was coming to the office on March 28 and asking her to come in for 8:30 a.m.
Miranda replied by stating that “my employment was terminated on March 6 by Dr. Sharma when he placed me on an indefinite layoff. I am entitled to be employed under the same terms and conditions of employment as I enjoyed prior to Dr. Lilker’s death.”
Dr. Sharma responded later that day, also by email, with “I did not terminate your job! There was no work for you and you wanted to go on UI. Now we have a doctor on March 28 and we are calling you to work for him for that day. It will be on the same terms. You will be called whenever there is work unless you decide not to take the hours.”
The following day, Miranda said she had been terminated when she was placed on an indefinite layoff and asked all further correspondence to go through her lawyer.
In an email, Dr. Sharma went on to say that nothing had been altered and “we can only call if you there is a doctor or the patients. If there are no patients what are you going to do?”
Constructive dismissal
The court said it was clear RSL was done with Miranda. On March 8, Dr. Sharma said “we do not have work for you since the doctor you worked for had died.”
Later, he said “there is no work for you.” In addition, the ROE was prepared with the shortage of work code as the reason. At no time did Dr. Sharma offer Miranda the opportunity to work for two other doctors at RSL.
The notion that Miranda was told “at all material times” she would have to report to work once a new doctor was hired was “after-the-fact narrative,” it ruled. The March 8 email, with notice of the ROE, ended with “best wishes” and no mention of being recalled in the future.
The March 5 layoff was a breach of her employment contract, it said. Although she did take unpaid leave when Dr. Lilker was on vacation, she was never formally laid off, it said. She had a fixed and known return date with the same terms and conditions of employment.
In its view, a reasonable person would have felt the essential terms and conditions of employment had been changed. It cited the Court of Appeal is Elsegood which said “absent an agreement to the contrary, a unilateral layoff by an employer is a substantial change in the employee’s employment.”
Notice period
Miranda sought 26 months’ notice. The court noted that, while there is no upper limit on notice, generally only exceptional circumstances warrant going beyond 24 months.
Considering her tenure (35 years); age (58); role (office administrator); and the fact she had worked for one employer, had limited computer skills and was near the end of her career, it settled on 22 months.
Mitigation
Miranda applied for other jobs, but was unsuccessful in finding one at the time of the trial.
RSL did not demonstrate she had failed to make reasonable efforts to find another job, it said.
Quantum of damages
Miranda was earning $34 per hour and worked three days a week, or about 24 hours, at the time of termination.
But it noted that she was on unpaid leave for a significant amount of time each year. Ignoring that fact would result in inflated damages, it said.
It took an average of her annual income on her T4s between 2014 and 2017, which was $36,693.46 — or $3,057.79 per month. With a 22-month notice period, the total came to $67.271.38.
She also sought vacation pay that accrued during the notice period under the Employment Standards Act. No specific submissions were made to the court, so it left it to them to sort out the amount – but said to contact the court if they couldn’t agree on an amount.
For more information see Miranda v. Respiratory Services Limited, 2022 ONSC 6094 (CanLII)
