Employer says she had made her dental office’s texting policy clear

A woman who was fired with cause for texting during a meeting and not being a “team player” has been awarded $5,164 in compensation for her seven years of service at the dental office where she worked.

The employer, dentist Dr. Paula Winsor-Lee of the Monashee Dental Centre in Lumby, B.C., appealed the decision that the Director of Employment Standards issued in March. But the B.C. Employment Standards Tribunal recently upheld it.

During the hearing, Winsor-Lee argued that she had established cause to fire her employee, Mieka Mandalari, primarily for texting during a meeting after several years of what the dentist identified as problematic texting during work hours.

“I still do feel like I did follow what needed to be in place,” Winsor-Lee said in a phone interview. “I had stated in previous staff meetings that texting — ongoing, and texting that is distracting from your job — is not allowed.”

Winsor-Lee testified that Mandalari would text in front of clients at work, while clients were waiting and once during a staff meeting.

In B.C., employment laws dictate that employers don’t have to pay staff for years of service if they have established a cause for firing them. But employment lawyer Michael Bain says the reasons an employer must provide for terminating an employee with cause are quite rigorous.

“Typically it’s a very high threshold where the employee has done something so fundamentally wrong that it undermines the whole nature of the employment relationship,” Bain said.

Examples Bain listed include theft and damaging an employer’s reputation.

The case shows how important it is for employees to get advice about their rights, Bain says, and for employers to ensure they have established proof for the cause of termination.

Not ‘Part of the Team’

According to the original decision in March, Mandalari worked at the Monashee Dental Centre as a certified dental assistant from December 2011 until July 2018.

Throughout that time, Winsor-Lee testified she tried to include Mandalari as “part of the team,” the decision said.

This included making changes to the Christmas party so Mandalari, who doesn’t celebrate the holiday, could attend. It also included inviting her to extra-curricular events like birthdays, which Mandalari didn’t always join in for.

In June 2018, Winsor-Lee planned an evening event with a yoga instructor to offer a course on stress and relaxation, which wasn’t mandatory.

Mandalari didn’t tell the dentist she couldn’t attend, which Winsor-Lee testified she took offence to. Mandalari testified that “she does not agree with the origins of yoga” and forgot to tell her employer she couldn’t go.

Texting during meeting

But the primary reason Winsor-Lee fired Mandalari was because of her texting habits — in particular, one incident during a staff meeting.

Other staff members had previously approached Winsor-Lee about Mandalari’s cellphone habits, according to the decision.

Winsor-Lee testified that she held a meeting to make her texting policy clear — that it could be only be done with minimal disruption to work.

At a staff meeting in June 2018, another employee spotted Mandalari texting with her phone concealed under the table, according to the decision. Mandalari testified that she had been texting her husband about their missing cat, which she was worried about.

Winsor-Lee testified that she felt Mandalari’s actions to be serious enough to warrant termination with cause.

Not ‘serious enough’ for Dismissal

In her decision, Jennifer Redekop, delegate of the Director of Employment Standards, agreed Mandalari’s texting was against the dental office’s policy.

But Redekop also wrote that it wasn’t “a sufficiently serious enough action to warrant immediate dismissal.”

Redekop noted Winsor-Lee herself testified that Mandalari’s performance issues weren’t egregious enough to warrant formal written discipline.

As for Mandalari not attending extra-curricular events, Redekop said “this is not a part of essential job performance.”

Redekop ordered Winsor-Lee to pay Mandalari $5,164 in compensation for service and to address some other payment issues.

The employer was also fined an additional $2,000 for contravening the Employment Standards Act.

Originally Posted from CBC News on July 28, 2019 by Maryse Zeidler