Lawyer Wins Appeal after Terminated for Cause over Alleged Impertinence

In January 2011, Ontario lawyer Dawn Marie Bennett successfully appealed the judgment that originally found her “impertinent” and deserving of summary dismissal by her employer, lawyer Karen Roaslee Cunningham. The case provides an interesting look into the nature of terminations for cause and the challenge employers face when seeking to establish cause that is reasonable enough to justify summary dismissal of an employee.     

Anatomy of Discontent

Ms. Bennett began to work as an associate lawyer at the office of Ms. Cunningham on July 15, 2002. Almost immediately, Ms. Bennett worked long hours in an unfamiliar area of law, with no legal assistant, and a lack of adequate technology and administrative structure.

In mid-August, Ms. Bennett requested a meeting with Ms. Cunningham to discuss her concerns. Ms Cunningham responded by arranging for an administrative clean-up and the implementation of both voicemail and legal management software. But the situation intensified with the sudden retirement of the office receptionist, the growing gap in Ms. Bennett’s billed and collected fees, and the discovery of errors that resulted in some of Ms. Bennett’s billable hours being incorrectly credited to Ms. Cunningham. The two met again in November and December.

On Saturday, December 21, 2002, just prior to Ms. Cunningham leaving for Christmas vacation, Ms. Bennett delivered to her a 4-page letter. In documenting nine areas of concern, the letter included an accusation against Ms. Cunningham of dishonesty and negligence. Upon returning to the office on January 6, 2002, Ms. Cunningham informed Ms. Bennett of her termination for cause.

Why the Original Judgment was Overturned

In the original judgment, the trial judge had upheld Ms. Cunningham’s action to terminate Ms. Bennett for cause based on an analysis of Ms. Bennett’s offending letter. However, Ms. Bennett appealed the decision.

On appeal, Justice R.S. Hackland referred to the trial judge’s judgment which defined insolence as “derisive, contemptuous or abusive language or conduct directed by an employee at his/her employer”. The trial judge had also noted that while two instances of insolence constituted just cause for summary dismissal, a single incident would suffice where the working relationship became totally undermined as a result of the insolence.
Justice Hackland, however, pointed out certain errors of principle that justified the appeal being allowed. The error in this case was a failure to analyze the alleged insolence in context of its nature, extent, degree and surrounding circumstance.

Revelations from Contextual Analysis

Justice Hackland noted that the letter, although strongly worded, was not insolent as a whole. His contextual analysis of the letter revealed that:

  • The letter contained only one phrase that fit the definition of insolence, that being the accusation of dishonesty and negligence;
  • Ms. Bennett frequently used words such as please and kindly when requesting resolutions to her concerns; and,
  • The letter concluded with the wish that the two could work together to “make this arrangement a successful one for both of us.”

Other points that the contextual analysis revealed were that:

  • The letter focused exclusively on office administration and was communicated privately so that Ms. Cunningham suffered neither financial loss nor a ruined reputation before other staff members;
  • The dismissal was not preceded by a record of disciplinary action that is often required to support a summary dismissal; and,
  • Ms. Bennett was allowed to continue her employment for 11 days following, which indicated that despite the offending letter, the relationship had not been immediately and hopelessly breached.

Ms. Bennett was therefore awarded $17, 065 plus interest for pay in lieu of four months’ reasonable notice.

Points to Note

As the modern workplace quickly changes and evolves, the case of Bennett v Cunningham highlights the complications of dealing with employment disputes.

In an age where freedom of expression is the norm, employees may face potential difficulties when electing to voice their frustrations about their employer or their working conditions. An imprudent approach may place employees on the receiving end of a termination for cause.

However, employers face the difficulty of establishing that the termination for cause was reasonable, despite what might appear to them to be an air-tight case. Acting hastily without knowledge of the applicable legal principles could result in costly future litigation.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues.

Original judgment: Bennett v. Cunningham, 2006 CanLII 37516 (ON S.C.)
Appeal judgment: Bennett v. Cunningham, 2011 ONSC 28 (CanLII)

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