By Sheryl Smolkin
Read this article and comments at Moneyville.ca
The manager of a Dairy Queen who was fired for bullying, swearing and insubordination was entitled to $25,000 because the owners effectively condoned similar behaviour during the 16 years she worked for the organization.
In 1993, Sharon Rodrigues started working for the Dairy Queen in Castlegar, B.C. earning minimum wage. Over time, she learned all of the jobs required to operate the restaurant and became a manager.
Rodrigues worked for four owners including Shendon Enterprises Ltd. The first formal indication of the company’s displeasure with her was a letter dated June 24, 2009 with allegations of rudeness, swearing, bullying, insubordination, anger and tardiness. She was put on probation and advised there would be a review of her behaviour in four weeks. Nevertheless, she was fired the next day.
The evidence revealed that Rodrigues could be outspoken and did not hesitate to call staff members stupid or use foul language in front of customers to emphasize her disapproval. Employees were particularly cautious in their dealings with her when she was in a bad mood, and these occasions became more frequent after a painful workplace injury to her arm in June 2008.
B.C. Supreme Court Justice Butler noted that the most contentious issue was how Rodrigues disciplined or criticized other employees. While agreeing that her behaviour was unacceptable, he said it did not amount to a repudiation of the employment contract. Rather, he viewed her actions as poor performance of the management responsibilities she was attempting to fill.
Because the company hadn’t challenged her conduct before the probation letter and did not give her a reasonable opportunity to improve her performance after the letter was delivered, the judge concluded that Shendon terminated Rodrigues without cause.
Taking into consideration her age (46), limited education, the availability of similar work, the nature of the employment and years of service, he found the appropriate notice period for the wrongful dismissal was 16 months.
Based on her wage of $13.50/hour she would have earned $43,225 working at the Dairy Queen for this period of time. However, she did mitigate her loss by obtaining employment at another fast food company in a non-managerial position. As a result, the money she earned from her new job was deducted, leaving her with an award of $18,525, plus $7,200 for bonuses she would have been entitled to in addition to her wages.
Shendon refused three offers to settle – all for amounts less than Rodrigues was ultimately awarded at trial – so in addition, the company also had to pay a portion of her legal and court costs.