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Citation:
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Panton v. Everywoman's Health Centre
Society (1988)
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Date:
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20001117
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2000 BCCA 621
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Docket:
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CA025089
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Registry:
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Vancouver
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COURT OF APPEAL FOR
BRITISH COLUMBIA
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BETWEEN:
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MARGARET PANTON
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PLAINTIFF
(APPELLANT)
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AND:
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EVERYWOMAN'S HEALTH
CENTRE SOCIETY (1988)
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DEFENDANT
(RESPONDENT)
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Before:
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The Honourable Mr. Justice Epson
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The Honourable Madam Justice Newbury
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The Honourable Madam Justice Saunders
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R. H.
Hamilton, Q.C.
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Counsel for the Appellant
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D. G. Crane
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Counsel for the
Respondent
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Place and Date of Hearing:
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Vancouver, British
Columbia
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19 May 2000
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Place and Date of Judgment:
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Vancouver, British
Columbia
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17 November 2000
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Written Reasons by:
The
Honourable Madam Justice Saunders
Concurred in by:
The Honourable Mr. Justice Esson
Dissenting Reasons by:
The Honourable Madam Justice Newbury
Reasons for Judgment of the Honourable Madam
Justice Saunders:
[1] Margaret Panton, the appellant, was
dismissed from her employment as clinical administrator of Everywoman's
Health Centre Society (1988) on March 1, 1996. She commenced an action
for damages for wrongful dismissal. The learned trial judge dismissed
her action, finding that the Society had cause to dismiss her without
notice. Ms. Panton appeals that decision.
[2] The issue for this Court is whether the
trial judge erred in finding cause for dismissal.
[3] The cause alleged by the Society was
particularized in several pages of allegations which were summarized by
the trial judge at para. 2 of his reasons, as allegations that Ms.
Panton:
[1] acted in a manner inconsistent with the
terms of her employment when, without advising the board of her actions,
she complained on behalf of the Society to the Delta Police Department
and asked that it convene a formal inquiry into the conduct of Constable
Parker as it affected the Society and certain of its employees;
[2] omitted, or refused, to follow the
direction of the president to deliver the Society's security logs to
crown counsel for use in a prosecution concerned with the
constitutionality of the Access to Abortion Services Act,
R.S.B.C. 1996, c.1; and
[3] challenged the board and its conduct and
decisions in an open and hostile manner which undermined its efforts to
manage the affairs of the Society.
[4] These faults were said by the Society, in
its amended statement of defence, to have breached certain implied
terms:
[3] In response to the whole of the Statement
of Claim, there were implied terms in the contract of employment between
the plaintiff and the defendant that the plaintiff would:
[1] act toward the defendant with all good
faith, fidelity and loyalty;
[2] obey the reasonable and lawful directions
of the defendants;
[3] not act so as to damage or destroy the
trust and confidence between the plaintiff and the defendant;
[4] treat other staff members and physicians in
such a way as not to undermine the morals and efficient operation of the
Everywoman's Health Centre.
[5] The trial judge found that Ms. Panton's
behaviour concerning the delivery of security logbooks to Crown counsel
for use in a trial concerning the constitutionality of the Access
to Abortion Services Act, constituted cause for dismissal. He
did not decide whether the other incidents set out in the particulars
amounted to cause.
[6] This appeal raises the issue of the duty of
an employee to participate voluntarily as a witness in a prosecution of
significance to her employer, and to report to her employer as to her
actions with and statements to Crown counsel, a third party to the
employment relationship.
[7] The issue of cause is an issue of mixed
fact and law. To the extent that the issue is one of law, the standard
of review is one of correctness: Mitchell v. Nanaimo District
Teachers' Assn. (1994), 94 B.C.L.R. (2d) 81 at 89 (C.A.). Where
the issue is one of fact, the standard of review is whether a palpable
or overriding error is demonstrated: Toneguzzo-Norvell (Guardian
ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114; Van
Mol (Guardian ad litem of) v. Ashmore (1999), 58 B.C.L.R. (3d)
305 (C.A.).
I. THE FACTS
[8] Before I discuss the issues, it is useful
to canvass the facts as found by the trial judge and as otherwise
evident.
[9] The Everywoman's Health Centre Society
(1988) is a non-profit society organized to provide abortion and
reproduction counseling services in Vancouver. Ms. Panton was a founding
member of the Society and was part of the "core staff" in the
position of clinical administrator. She became an employee shortly after
the Society's incorporation in 1988. She served as a director of the
Society until 1989 when she resigned to conform to a Society policy that
paid staff not serve as directors. Day to day management decisions
affecting the clinic were made by the core staff in committee.
[10] A board of directors governed the Society.
The president of the Society, a director, was also the chief executive
officer. At relevant times Ms. Zander was the president. The management
model of the Society was described by the trial judge in these terms:
[7] Reaching a conclusion on the absence or
existence of cause is difficult because some of Ms. Panton's actions
in the course of her employment were responses to a breakdown in the
cooperative management model adopted by the Society. The model
contemplated shared decision making by the board of directors and
key employees with respect to all-important matters affecting the
Society. The model worked for a period of time. When it proved
unsatisfactory, the board assumed a dominant role in the management
of the Society's affairs, notwithstanding the objections of key
employees and Ms. Panton in particular.
[11] The events leading to Ms. Panton's
termination occurred in tense times for the Society and its employees.
The Society's clinic had been a site of protest by those opposed to its
operations; Ms. Panton had been assaulted by a protestor; a doctor who
provided abortion services was shot in Vancouver; and there had been
violent attacks in the United States against abortion clinics and staff.
In December 1994 the Society had learned that a member of the Delta
Police Department, Constable Parker, had identified the names of staff
at the Society's clinic by using a police computer to search license
plates, apparently for the benefit of opponents of the Society. Ms.
Panton was one of the staff identified by Constable Parker.
[12] In addition to the strain created by these
outside incidents, internal tensions were evident in the relations
between the Board and staff. Ms. Panton received hate mail from an
employee who subsequently resigned. The strains told on Ms. Panton and
in the spring of 1995 she consulted a clinical psychologist.
[13] The matter of Constable Parker's computer
search of license plates was not quickly resolved. In May 1995 Ms.
Panton and other staff members filed complaints under the Police
Act, S.B.C. 1988, c. 53 concerning the constable's conduct.
After an internal investigation, the Delta Police Department resolved to
suspend Constable Parker as discipline for his activity. By letter
received June 16, 1995, the Chief Constable advised Ms. Panton that if
she was not satisfied with the result, she could request a public
inquiry within 30 days of receipt of the letter.
[14] On June 29, 1995 Ms. Panton wrote to the
Chief Constable for Delta on Society letterhead requesting a public
inquiry. The trial judge found that "the letter purported to be
written 'on behalf of Everywoman's Health Centre and of the individual
staff members whose licenses were searched'" and was signed by Ms.
Panton as Clinical Administrator. While Ms. Panton copied her letter to
the Society's lawyer, she did not advise any member of the Society's
security committee or any member of the Board of her request for an
inquiry, although the Parker matter was of some consequence to the
Society. In mid-July the Delta police department advised Ms. Panton that
her first request for an inquiry would not be acted upon and that a
fresh request was required after the department sent another letter. Ms.
Panton left on medical leave before that second letter arrived and
another employee, receiving the letter, requested a public inquiry on
August 25th by copying Ms. Panton's letter and signing it on her behalf.
[15] During the relevant period the Board was
becoming increasingly involved in the Society's management and
operation. It retained a consultant to interview staff. Ms. Panton did
not co-operate with this process. In the course of completing her
interviews with other staff, the consultant uncovered complaints
concerning Ms. Panton. When these complaints were reported to the Board,
Ms. Zander advised Ms. Panton by telephone and in a meeting. Concerns
outlined by Ms. Zander focused on complaints by other employees about
Ms. Panton's behaviour towards staff and Board members, and her failure
to work as a team member. In September 1995 Ms. Zander sent a letter to
Ms. Panton summarizing the discussion. The letter could be fairly
characterized as critical of Ms. Panton, and warned of a need to change.
[16] On July 21, 1995 Ms. Panton advised the
Board and staff that she was going on medical leave. Although her doctor
recommended the leave begin immediately, she delayed to ensure that her
tasks were reassigned to other staff. Her leave commenced August 8,
1995. She testified that her leave was made necessary by anxiety and
depression.
[17] After Ms. Panton's medical leave
commenced, her relations with the Board deteriorated steadily. It
appears both parties contributed to this deterioration, but there is no
doubt from the findings of the trial judge that Ms. Zander exacerbated
the poor relationship by criticizing Ms. Panton, both personally and to
the Board, incorrectly and inappropriately. Examples noted by the trial
judge include:
a) Ms. Panton did not attend one meeting
because of a prior commitment made on behalf of the Society. Ms.
Zander, knowing the reason for Ms. Panton's absence, nonetheless
noted her absence, criticizing Ms. Panton either expressly or
inferentially for not attending;
b) In November 1995, Ms. Zander reprimanded
Ms. Panton for attending at the clinic to shred documents. Ms.
Panton explained that her actions conformed to the Society's
document destruction policy. The trial judge found Ms. Zander's
criticism was inappropriate and was made without proper inquiry by
Ms. Zander;
c) In the November 1995 reprimand, Ms. Zander
asked Ms. Panton to return her clinic keys to a Board member pending
her return from medical leave. Ms. Panton returned the keys to the
staff member responsible for monitoring keys, having explained her
intention to return them to this person and her reasons for so doing
in a letter to the Board written November 11, 1995. Her letter also
addressed the reprimand she had received for attending at the clinic
to shred documents. In a letter dated December 12, 1995, Ms. Zander
reprimanded Ms. Panton for returning her keys to the clinic staff
member.
d) Ms. Zander expected Ms. Panton would return
to work from medical leave in mid-December, 1995. In late November
she learned that Ms. Panton would not return until January 1996. Ms.
Zander wrote Ms. Panton on December 8th advising her that paid sick
leave would terminate and she should apply for long term disability
benefits. However, Ms. Panton actually was cut from the payroll
December 5th, 1995, and under the terms of the disability insurance
policy, was unable to receive benefits immediately. She was without
pay from December 5, 1994 until February 21, 1996, when she received
retroactive long term disability benefits.
e) Ms. Zander falsely accused Ms. Panton of
removing security photographs from the clinic without authorization.
In fact, it was Crown counsel handling the prosecution of a
protestor, Mr. Lewis, who had removed these photographs.
[18] On the other side of this deteriorating
relationship was Ms. Panton. She was outspoken concerning the Board's
method of handling complaints about her, concerning Ms. Zander and her
leadership of the Society, and concerning Ms. Zander's conduct towards
herself. She expressed disagreement with Board decisions and the Board's
manner of decision-making in intemperate terms. The trial judge
concluded:
[53] The unfounded accusations directed at Ms.
Panton by Ms. Zander as I have described and the actions of the
Society in relation to long term disability do not reflect well upon
Ms. Zander in her role as president and, therefore, chief executive
officer of the Society. The best that can be said on her behalf is
that her actions may have resulted from Ms. Panton's attitude toward
the board from June 1995 until her termination in March 1996.
And:
[56] The correspondence permits only one
conclusion: Ms. Panton had no confidence in Ms. Zander or the board
and its ability to govern the Society.
And:
[61] I observe that Ms. Panton accepted
employment with the Society which had adopted an atypical governance
and operating model requiring joint and collegial decisions of the
board and core staff in respect of matters of critical importance to
the Society. The board and the core staff were, in a sense, partners
in the Society's undertaking. The objective of governance through
cooperation was laudable. It was achievable and achieved until
tensions from internal and external sources made collective
decision-making impractical.
[62] As the board asserted its authority over
the affairs of the Society, Ms. Panton opposed board initiatives,
was unwilling to participate in a discussion of her role in the
Society absent agreement on process, and was prepared to
persistently challenge the board. In the case of the Parker inquiry
and the Lewis prosecution, she departed from the co-operative model
she espoused to act on her own without gaining consensus or
reporting her actions to anyone in a position of authority.
[63] Ms. Panton was aware that ultimate
responsibility for the management and governance of the Society
rested with the board. She had acknowledged the board's authority in
her letter of January 5, 1996 to board members. She had been
involved in the successful election of a slate of directors,
including Ms. Zander, to replace the incumbents in 1993 in order to
ensure that a proposal supported by the incumbents, but thought by
many members of the Society to be against its interests, would not
be acted upon.
[64] As Ms. Panton challenged Ms. Zander and
the board, and as Ms. Zander made unjustified allegations against
Ms. Panton, each developed a profound distrust of the other.
[19] In November 1995 the Board and Ms. Zander
learned for the first time that the Society had requested a public
inquiry into Constable Parker's license search. At trial, Ms. Zander
testified that the request for a public inquiry compromised the
flexibility of the Board because it could not withdraw from the inquiry
process without loss of credibility, had it desired to do so. However,
Ms. Zander never expressed that concern to Ms. Panton before the trial,
the Board did not reprimand Ms. Panton when it learned of her request in
November 1995 and the Board appeared to take no action against the other
employee who sent the request in August 1995. Indeed the Board never
discussed the issue with Ms. Panton although Ms. Panton referred to the
Parker matter in her correspondence to the Board sent in November 1995.
Nor did the Board lead evidence at trial that the public inquiry was not
an appropriate avenue for the Society to pursue, or otherwise indicate
that it would not have pursued an inquiry but for Ms. Panton's request.
[20] In the months leading to December 1995,
the Society was interested in the outcome of the prosecution against Mr.
Lewis for breach of the Access to Abortion Services Act.
The Act created a "bubble zone" around the
clinic, in which protest activity, including speech, was prohibited. Mr.
Lewis deliberately violated the Act in order that he would
be charged, thereby permitting him to challenge the constitutional
validity of the legislation.
[21] The Lewis trial commenced in late November
1995. Ms. Panton was expected to be a witness and was scheduled to meet
with prosecutors on a Sunday late in November to review her evidence.
She was, at this time, still on medical leave.
[22] The trial judge explained what then took
place (I note that both parties agree that the following passages
wrongly set the dates of meetings as December):
[34] On December 1st, Ms. Zander met with Ms.
Panton. She advised that the board had decided that the Society's
security logs would be made available to prosecutors for use in the
case. Ms. Zander instructed Ms. Panton to deliver a copy of the logs
to the prosecutors when she met with them.
[35] Ms. Panton was aware of disagreement
among members of the security committee on whether the logs should
be so used. She also questioned whether Ms. Zander was acting on
behalf of the board rather than on her own initiative. Ms. Panton
was steadfast in her opposition to the use of the logs at the trial
because of her concern that disclosure of the contents would affect
the security and safety of the staff and volunteers.
[36] Over the weekend Ms. Panton determined
that she would take the logs to the meeting with the prosecutors,
place them on the table and announce that while the board had
authorized their use, she would cease to be a voluntary witness
should the prosecutors take the logs for review.
[37] I do not accept Ms. Panton's evidence
that she said she would testify if served with a subpoena. Her
evidence at trial is inconsistent with that at her examination for
discovery. I am satisfied the import of her message to the
prosecutors was that she would not be a willing witness in any
circumstances if the logs were reviewed or used.
[38] Ms. Panton saw Ms. Zander at the hotel on
December 3rd. She did not advise her of the terms upon which she had
decided to deliver the logs to the prosecutors. She met with the
prosecutors and advised of her position. The action had the desired
result. The prosecutors did not take the logs and the information in
them was not used at trial as a result.
[39] While Ms. Zander was told by prosecutors
on December 3rd of a problem surrounding the logs and Ms. Panton's
evidence, it was not until late February 1996 that Ms. Zander and
the board learned that the prosecutors had not taken the logs
because of [Ms. Panton's] position with respect to her evidence.
[23] On February 28, 1996 the Board resolved to
dismiss Ms. Panton from her employment. Ms. Panton was advised of this
decision March 1, 1996.
II. DISCUSSION
A. Cause
[24] The issue is whether Ms. Panton's
behaviour, in law, amounted to cause. In the event it was cause, the
Society was entitled to dismiss Ms. Panton without notice. In the event
it was not, the Society was entitled to bring the employment
relationship to an end by termination, but only on giving Ms. Panton
reasonable notice. In the absence of reasonable notice, the law requires
payment in lieu, making the employee whole. The question, therefore, is
whether Ms. Panton's conduct was so egregious in the circumstances as to
permit her employer to terminate the employment relationship without
providing the cushion of reasonable notice.
[25] The degree of misconduct required to
permit dismissal without notice has varied with the times in which the
misconduct has been judged. In concept, cause was described as early as
1886 by Lord Esher, M.R. in Pearce v. Foster (1886), 17
Q.B.D. 536 at 539-40:
The rule of law is that where a person has
entered into the position of servant, if he does anything
incompatible with the due or faithful discharge of his duty to his
master, the latter has a right to dismiss him. The relation of
master and servant implies necessarily that the servant shall be in
a position to perform his duty duly and faithfully, and if by his
own act he prevents himself from doing so, the master may dismiss
him. It is not that the servant warrants that he will duly and
faithfully perform his duty; because, if that were so, upon breach
of his duty his master might bring an action against him on the
warranty. But the question is, whether the breach of duty is a good
ground for dismissal. I have never hitherto heard any doubt that
that is the true proposition of law. What circumstances will put a
servant into the position of not being able to perform, in a due
manner, his duties, or of not being able to perform his duty in a
faithful manner, it is impossible to enumerate. Innumerable
circumstances have actually occurred which fall within that
proposition, and innumerable other circumstances which never have
yet occurred, will occur, which also will fall within the
proposition. But if a servant is guilty of such a crime outside his
service as to make it unsafe for a master to keep him in his employ,
the servant may be dismissed by his master; and if the servant's
conduct is so grossly immoral that all reasonable men would say that
he cannot be trusted, the master may dismiss him.
[26] In Canada, Mr. Justice Schroeder described
cause in these often quoted terms in R. v. Arthurs, [1967]
2 O.R. 49, 62 D.L.R. (2d) 342 (C.A.), [reversed on other grounds 1969
S.C.R. 850] at p. 348:
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.
[27] Mr. Justice Vancise discussed cause for
dismissal in terms of a repudiation of the contract in Jim
Pattison Industries v. Page, [1984] 4 W.W.R. 481, 10 D.L.R.
(4th) 430 (Sask.C.A.), saying at p. 490:
There is no middle ground. The employer either
has cause or he does not. ... An employee who repudiates the
contract of employment is not entitled to "some" notice
because he or she has been a "good" employee prior to such
repudiation.
[28] In general, then, just cause is employee
behaviour that, viewed in all the circumstances, is seriously
incompatible with the employee's duties, conduct which goes to the root
of the contract and fundamentally strikes at the employment
relationship.
[29] The trial judge found cause in the events
surrounding delivery of the security logbooks for the Lewis prosecution.
In doing so he did not decide whether the actions prior to those events
constituted cause for dismissal, even though he clearly found a
lamentable breakdown in the employment relationship, with Ms. Panton's
disrespectful and confrontational behaviour met by the Board's sorry
display of managerial authority. It is useful to set out his discussion:
[65] If, by her challenges to the board, which
had ultimate responsibility for the management of the Society, she
had not previously crossed the line of acceptable and respectful
disagreement with an employer over difficult issues requiring
resolution through discussion rather than confrontation, she most
assuredly did so ... when her
actions caused prosecutors to refrain from reviewing the security
logs to determine their usefulness in the Lewis prosecution.
[66] Mr. Lewis was acquitted at trial because
the legislation was found to be unconstitutional. The acquittal was
reversed on appeal to this Court where the legislation was held not
to be in violation of the Charter of Rights and Freedoms:
R. v. Lewis, [1997] 1 W.W.R. 496. One of the
difficulties with the case was the absence of direct evidence on
which to base a finding with respect to the proportionality of the
legislative restriction on free speech and assembly.
[67] One need not speculate about the course
of the trial had the prosecutors had access to the logs. It is
sufficient to note that Ms. Panton's conduct at her meeting with
prosecutors was calculated to ensure the utility of the logs would
not be assessed and that they would not be used as evidence in the
trial.
[68] Ms. Panton's actions were a
contravention of the employer's directive in relation to a matter of
vital importance to the Society and its operations. Regardless
of her motive, her actions on this occasion were inimical to the
interests of the Society and the board.
[69] In my opinion, it is not sufficient, as
counsel argues, to say that Ms. Panton was entitled to give or not
give her evidence on such terms as she might decide. While she
may have been entitled to stipulate the terms on which she would
testify, she was not entitled to undermine the board's decision and
attempt to dissuade the prosecutors from reviewing or using the
security logs. If she was not prepared to carry out the employer's
directive because of conscientious objection or doubt about board
authorization of Ms. Zander's directive, she should have advised Ms.
Zander that was the case. The Society would then have been in a
position to counteract the intended effect of Ms. Panton's conduct.
[70] Ms. Panton's decision in relation to
the logs, alone or in conjunction with her other actions,
constituted a repudiation of her responsibilities as an employee.
...[emphasis added]
[30] The issues of cause identified by the
trial judge in the above quoted passage are disobedience on the part of
Ms. Panton, her undermining of the Board's decision, and her failure to
communicate her actions to Ms. Zander. The trial judge found these
behaviours cumulatively amounted to cause for dismissal.
[31] This court must ask, however, whether each
of these "faults" was established on the findings of fact in
the reasons for judgment, and whether in law they constitute misconduct
upon which a dismissal may be based in whole or part. Only then should
we turn to the question of whether the proven misconduct, taken
together, amounted to cause.
i) Disobedience
[32] As the trial judge concluded that Ms.
Panton's actions "were a contravention of the employer's
directive", I address first the issue of disobedience.
[33] In order for disobedience to constitute
cause, the direction disobeyed must be clear and lawful, and the act of
disobedience willful and one of substance. Mr. Justice MacKinnon
accurately described disobedience as cause in Heyes v. First City
Trust Co., (4 December 1981), Vancouver C812809 (B.C.S.C.), 12
A.C.W.S. (2d) 105, at p.9:
Wilful disobedience is, of course, a ground
upon which an employer may dismiss without notice. In order to
justify the dismissal on those grounds there is an onus upon the
defendant to establish there were acts willfully carried out by the
employee in defiance of clear and unequivocal instructions of a
superior or refusal to carry out policies or procedures well known
by the employee as being necessary in the fulfillment of the
employer's objectives.
I also rely upon the decision of this Court in Stein
v. British Columbia (Housing Management Commission) (1992), 65
B.C.L.R. (2d) 181 (C.A.).
[34] In my view, the findings of fact in this
case do not permit the conclusion that Ms. Panton committed an act of
disobedience, for three reasons. First, the finding of the trial judge
was that Ms. Panton was instructed "to deliver a copy of the logs
to the prosecutors when she met them". This Ms. Panton did.
Although counsel for the Society contended that the directive was
"to cooperate with the Crown in its request to use the security
logs in evidence", this submission does not accord with the
evidence. Ms. Zander testified that she directed Ms. Panton to deliver
the security logs and told Ms. Panton that she, Ms. Zander, "had
been invested by the Board to cooperate with counsel". Thus, in my
view, neither the trial judge's findings of the express direction, nor
the evidence, permit the conclusion that Ms. Panton failed to comply
with a clear directive.
[35] Second, if the finding of an act of
disobedience was based on an implied directive to deliver the logs
without reservation, the directive lacked the clarity necessary to
attract the sanction of dismissal.
[36] Third, on the evidence Ms. Panton lacked
the degree of willfulness required to constitute cause for dismissal.
The only evidence on the issue of willfulness was from Ms. Panton. She
testified that after she was directed to deliver the logbooks to Crown
counsel she reflected on the options, discussed the matter with two
other witnesses and resolved to deliver the logbooks, but withdrawing
voluntary participation which she considered a personal matter. This
conduct revealed an understanding of her obligation to obey the
instruction to deliver the logs and an intention to comply with it.
[37] I conclude that disobedience could not be
relied upon as cause given the trial judge's findings of fact and the
evidence before him.
ii) Undermining the Board
[38] What, then, of the issue of undermining
the Board's decision? This conduct took the form of Ms. Panton's advice
to Crown counsel that she would not voluntarily testify in the trial in
the event Crown counsel elected to review or use the logs.
[39] Again, I do not consider that this
behaviour amounted to misconduct which could underpin a dismissal for
cause. I observe firstly that the only first hand evidence before the
court on the meeting between Ms. Panton and Crown counsel came from Ms.
Panton herself. Ms. Zander's testimony on the meeting was hearsay, being
a recitation of information obtained from Crown counsel. Crown counsel
was not called to testify and the court could only speculate on the
effect Ms. Panton's statements and explanation had on Crown Counsel.
More significantly, Ms. Panton testified that she advised Crown counsel
that the Board wished to cooperate. This advice was consistent with
information she had received from Ms. Zander, and clearly and accurately
described the Board's position to Crown counsel. Crown counsel was aware
that it could obtain full cooperation by approaching the Board. These
two factors combine, in my view, to erode the conclusion that Ms. Panton
undermined the Board's decision.
[40] There is, however, a third flaw in the
conclusion that Ms. Panton's withdrawal of voluntary testimony
constituted misconduct. It assumes that the Board was entitled to
require her voluntary participation and that it had done so. I consider
that this suggestion transgresses into Ms. Panton's private realm of
behaviour as a citizen. Her voluntary participation as a witness for the
prosecution was a matter between herself and Crown counsel. Although her
employer, the Society, was keenly interested in the outcome of the case,
defence of the constitutional validity of the legislation was the
responsibility of Crown counsel - the Society had no formal role in the
proceeding. I think the statement made by Mr. Justice Goodridge (later
C.J.N.) in Wells v. Newfoundland and Labrador Nurses Union
(1986), 57 Nfld & P.I.I.R. 67 at para. 50 is equally applicable in
this case:
... An employer espousing a cause may very
well view with a jaundiced eye an employee who espouses an opposing
cause but, unless it conflicts with the employee's function, there
may be little to be done about it. None of the standard causes for
dismissal are present - insubordination, dishonesty, conflict of
interests, competing with employer, breaching trust, etc.
I recognize that the issue in Wells
was not testimony in a legal action but the involvement of the employee
in a Royal Commission which his employer opposed. However, the basic
issue of differentiating an employee's duty to the employer and
behaviour as a private citizen is the same.
[41] While I doubt that an employer can require
an employee to testify voluntarily in a case between two strangers to
the employment contract, I do not need to resolve that issue because in
this case no directive was given to Ms. Panton to do so. In this
circumstance, at least, Ms. Panton was entitled to exercise her civil
liberties. Although Crown counsel could have chosen both to look at the
logbooks and to subpoena Ms. Panton to testify, a not uncommon step in
cases requiring testimony from an employee, Crown counsel did not do so.
Had Crown counsel done so, Ms. Panton would have been called on to meet
her civic responsibility, and there is no reason to believe that in
those circumstances she would have provided less than the whole truth in
testimony.
[42] Lastly, insofar as Ms. Panton's motive is
relevant, I note that her position was based on sincere security
concerns for the safety of herself and others. The sincerity of this
concern was not undermined at trial, and may be understood in the
context of the climate which surrounded the Society's clinic at times
relevant to this case.
[43] On these considerations, I conclude that
Ms. Panton's behaviour in setting a condition on her voluntary testimony
is not a basis of just cause for dismissal.
iii) Failure to advise Ms. Zander
[44] The third aspect of Ms. Panton's behaviour
found to constitute cause for dismissal was Ms. Panton's failure to
advise Ms. Zander of her conversation with Crown counsel. However there
was no direction to Ms. Panton to report back on the meeting or
otherwise communicate with Ms. Zander. The failure by Ms. Panton to
report to Ms. Zander, or to the Board, was at most a single event of
poor judgment or inadequate communication, not surprising in the
deteriorating climate of the employment relationship. As Ms. Panton's
actions did not contravene a directive or, in my view, step beyond
appropriate behaviour, I conclude that in these circumstances the
failure to communicate could not support dismissal without notice.
iv) Conclusion
[45] Taking the proven conduct as a whole, it
is in my view that the repudiation of the employment relationship by Ms.
Panton, found by the trial judge, is not supported by the facts found by
the trial judge concerning Ms Panton's conduct in the Lewis
prosecution. Nor was the employer entitled to say that the necessary
relationship of trust was irreparably harmed by this conduct and thus
that it was relieved from its obligation to give reasonable notice upon
dismissal. Although an employer may lose confidence in an employee, not
every loss of confidence demonstrates cause for dismissal. Only where
conduct of the employee is sufficiently egregious in all the
circumstances, does the right to terminate for cause exists. Such was
not the case here.
[46] I recognize that the Society did not
advance the Lewis prosecution incident as the sole
justification for dismissal. However, the trial judge did not find that
the other matters themselves constituted cause. The communications
concerning the Parker inquiry were not acted upon by the Board when
discovered, not even to the extent of reprimand. They occurred during an
obvious deterioration in the employment relationship both prior to and
after Ms. Panton's commencement of leave for stress related problems.
Her actions on the Parker inquiry did not contravene an instruction, and
ultimately there was no evidence that the actions were contrary to the
Board's stated wishes or its best interests. Ms. Panton's failure to
seek instruction before replying to the Chief Constable's letter could
not form a basis for dismissal without notice.
[47] Likewise, Ms. Panton's behaviour towards
Ms. Zander and the Board, much criticized by the trial judge and clearly
requiring correction, did not amount to cause. This is particularly so
as the standard of behaviour of Ms. Zander towards Ms. Panton was also
deficient and, given her position of authority over Ms. Panton, equally
lamentable.
[48] To the extent that conduct must be
assessed to determine whether cause is established, I further observe
that each case must be decided on its own circumstances. These
circumstances include the length of service, the nature of the
employment, the status of the employee, the circumstances of the
misconduct, the character of the misconduct and the impact of the
misconduct upon the employer. In the circumstances of this case, it was
a reversible error to fail to consider Ms. Panton's senior rank, her
sincere concerns regarding the security of herself and others, her
intention to obey the directive given, and the faltering relationship
between Ms. Panton and the Board at the time of her meeting with Crown
counsel.
[49] The finding of cause for dismissal is, in
my view, a reversible error. I would allow the appeal.
B. Damages
[50] The next issue is assessment of damages.
The assessment of damages requires an understanding of the duties and
responsibilities of the position filled by Ms. Panton and, in the
circumstances of this case particularly, the sufficiency of efforts made
by her to obtain suitable alternate employment. In my view, these are
properly matters for the trial court. I would remit the matter to the
trial court for assessment of damages.
C. Costs
[51] As Ms. Panton has been successful on the
issue of liability and the matter of damages is remitted to the trial
court, she is entitled to costs of the appeal.
"The Honourable Madam
Justice "Saunders
I AGREE:
"The Honourable Mr. Justice Esson"
Dissenting Reasons for Judgment of the Honourable Madam Justice Newbury:
[52] I have read the reasons for judgment of
Madam Justice Saunders and regrettably find myself unable to agree with
them or with the allowing of Ms. Panton's appeal.
[53] I begin by noting that in my view, the
appeal is not concerned mainly with the duty of an employee to
participate voluntarily as a witness in a prosecution of significance to
her employer. I too doubt that an employer can require an employee to
testify voluntarily in a case between two strangers to the employment
contract; however, the conduct which the trial judge found justified Ms.
Panton's dismissal was her failure to deliver the log books to Crown
counsel on behalf of the Society as requested by Ms. Zander. No
qualification or condition was attached to that request; yet Ms. Panton
took it upon herself to circumvent the direction by attaching a
condition to Crown counsel's use of the log books. Thus while appearing
to have delivered the books, she effectively circumvented the Board's
decision to provide them to the Crown and in addition, did not tell her
superiors what she had done. In my view, the trial judge was correct in
concluding that Ms. Panton had been given a clear directive to deliver
the logs. It was surely not necessary for the employer to add that they
should be delivered "without reservation" - that must be
implied in a direction that is not made subject to any qualification.
[54] Nor can it be said in my view that Ms.
Paton lacked the degree of willfulness required to constitute cause. Her
action was taken after deliberation and had the desired effect; the fact
that she did not disclose it to anyone indicates in my view an
understanding of the implications her decision would have for the
Society. This is a matter entirely separate from the question of whether
Ms. Panton could be required to testify in accordance with the Society's
wishes.
[55] It follows that I see no basis for
interfering with trial judge's conclusion that Ms. Paton's conduct in
relation to the logs constituted a repudiation of her responsibilities
as an employee. The case seems to fall clearly within the principle
stated by this Court in Stein v. British Columbia (Housing
Management Commission) (1992), 65 B.C.L.R. (2d) 181, where
Southin J.A. noted the proposition that:
... an employer has the right to determine how
his business shall be conducted. He may lay down any procedures he
thinks advisable so long as they are neither contrary to law nor
dishonest nor dangerous to the health of the employees and are
within the ambit of the job for which any particular employee was
hired. It is not for the employee nor for the court to consider the
wisdom of the procedures. The employer is the boss and it is an
essential implied term every employment contract that, subject to
the limitations I have expressed, the employee must obey the orders
given to him. [at 185]
[56] Last, I note that had I been of the
opposite view, I would have concluded that it was necessary to remit the
other two alleged grounds of cause for dismissal to the trial court, in
light of the fact that the trial judge dealt only with the "log
books" matter and did not decide whether the other incidents set
out in the particulars (see para. 4 of Madam Justice Saunders' Reasons)
constituted cause.
[57] I would dismiss the appeal.
"The Honourable Madam Justice
Newbury"
