Giving With One Hand And Taking With The Other

The case of Rodica Cimpan is a tale of giving with one hand and taking away with the other.

Ms. Cimpan was an Early Childhood Educator employed with the Kolumbia Inn Daycare Society (“K.I.D.S.”) from August 1, 1994 to October 31, 2005 when she was terminated as a result of “insubordination”. Ms. Cimpan brought a claim for wrongful dismissal. K.I.D.S.’ position was that Ms. Cimpan’s employment was terminated for cause, and as such was not entitled to any damages. In the alternative, K.I.D.S took the position that Ms. Cimpan failed to undertake a reasonable job search, and as such was not entitled to any damages.

The evidence tendered at trial suggested that Ms. Cimpan was an overall good employee and which was evidenced by positive annual reviews. The Court noted that as recently as six months prior to her termination, Ms. Cimpan was provided with a positive letter in support of Ms. Cimpan’s renewal of her certification as an Early Childhood Educator, referring to her in the letter as a “very responsible, responsive and valuable member of the staff”.

K.I.D.S.’ allegation of insubordination stems from three separate incidents involving Ms. Cimpan’s non-attendance at work, without approval of or notice to her immediate supervisor, Ms. McBean (“McBean”). The first incident occurred in November 2002 when Ms. Cimpan and her family had gone on vacation to Mexico on a scheduled and approved one-week holiday. Ms. Cimpan was expected back to work on Monday, December 2, 2002. Unfortunately, during the vacation, her son became ill. Ms. Cimpan’s evidence was that her son was well enough to return from Mexico by the end of the scheduled vacation but that Ms. Cimpan and her family decided to extend the vacation by a week so that they could enjoy the vacation which was otherwise ruined by her son’s illness. Upon her return to work, Ms. Cimpan was suspended for failing to return to work as scheduled. The Court ruled that Ms. Cimpan’s conduct in not returning to work as originally scheduled warranted severe discipline and suggested that the suspension was appropriate in all the circumstances. In fact, Ms. Cimpan could have been terminated for such conduct. However, in this case Ms. Cimpan was suspended and given a strong warning that similar conduct would not be condoned.

The next incident did not occur for another three years when on August 10, 2005, Ms. Cimpan advised her Employer that she would not be able to be at work the next day and that another employee would cover her shift. K.I.D.S. was upset that Ms. Cimpan failed to contact McBean directly and that in fact no one was able to cover for her for the whole day. K.I.D.S.’ treatment of this incident was found by the Court not to be disciplinary in nature but merely treated as a “reminder to Ms. Cimpan”.

The third and final incident occurred shortly thereafter. On September 22, 2005, McBean denied a request by Ms. Cimpan that she be given her September 26, 2005 shift off. K.I.D.S. alleges that Ms. Cimpan was upset when she did not get the day off and states that she told a co-worker that she would not be coming to work the next day in retribution for not receiving September 26 off. Ms. Cimpan later left a message (as opposed to contacting McBean directly) indicating that she had a doctor’s appointment the next morning and may not be in on September 23, 2005. Ms. Cimpan did see her doctor and was given time off to October 24, 2005 due to “stress-related” illness. K.I.D.S. was clearly suspicious of Ms. Cimpan’s “alleged” illness. When Ms. Cimpan’s was able to return to work, K.I.D.S. terminated her, relying on the three incidents as above.

The trial Judge indicated that the medical evidence confirmed that Ms. Cimpan was ill. The Court further determined that the misconduct alleged by K.I.D.S. would not warrant the termination of her employment and that she would be entitled to reasonable notice of the termination of her employment in the equivalent of nine months’ pay.

However, the matter did not end there. The Court confirmed that damages were subject to Ms. Cimpan’s showing that she undertook a reasonable job search in mitigation of her damages. Ms. Cimpan’s evidence at trial on this issue was that she did not make any attempt to obtain alternate employment after her termination initially “relying upon the financial ability of her husband to support her” and then deciding to “educate herself” in furtherance of opening up her own daycare centre. The Court held that “it cannot be the law that a dismissed employee can elect to take further training for self-employment and charge that to the Employer, unless the employee cannot obtain alternate suitable employment”. The Court further held that notwithstanding the fact that the onus is on the Employer to prove that the Plaintiff has failed to mitigate, and which it acknowledged is a very difficult burden, the Court held that the Employer was able to prove that there were comparable positions available for Ms. Cimpan had she been interested in alternate employment.

The Court found that given that Ms. Cimpan made no efforts whatsoever to mitigate her damages by seeking alternate employment notwithstanding that employment was available, that she had not suffered any damages at law even though she was wrongfully dismissed.

This case is a lesson to terminated employees that damages are not guaranteed, and are subject to mitigation. A Court expects an employee to undertake a reasonable job search failing which the value of the damage award will be affected. The Cimpan case is a worst-case scenario where the Court nullified the whole award. Employees are well advised to undertake a reasonable job search and to keep strict records of their efforts in that regard.

This article is provided for information purposes only and does not constitute legal advice. Any individual questions or legal issues should be discussed with independent counsel.