Severance pay a right ,

Janice Mucalov, LL.B.

Contributing Coltannist

JUST six weeks after
returning from mater-
nity leave, Radmilla
Stolle was fired from
her job as assistant spa
manager at the luxuri-
ous Ocean Pointe
Resort Hotel and Spa
in Victoria.

She had worked for the
hotel for almost six years.

This was her third mater-
nity and parental leave. With
her first two leaves, she
returned to her previous job
or moved into a better posi-
tion. But a week before
going back to work after her
third leave, she discovered
thar her role at the spa had

been dramatically altered.
“I was relegated to an

.. extremely junior, ill-defined

role,” she said.
“My duties were simply
that of preparing payroll...

; and some minor invoice

- management and inventory
“ control.”
Before going on leave,

‘she ran the day-to-day spa
_ Operations including recep-
» tion, hair, esthetics and mas-

sage departments; designed
- and set up multi-day, group
‘and convention packages;

and prepared budger and

staffing reports.
Aweek after going back
to work, Mrs. Stolle met

“swith the hotel’s director of

human resources and the spa
manager, but was again told
she wouldn’t be getting her
old position back.
Six weeks later, Alex
» Lindquist, the hotel’s general

manager, called her in to his
oftice and told her that her
job had been terminated.

He gave her a cheque for
wages owing to her up to
thar date.

He also offered her five
weeks’ minimum severance
Pay as required by the
Employment Standards Act
(one week for cach year
worked) plus another seven
weeks’ pay.

But he refused to give her
this severance cheque unless
she signed a release protect-
ing the hotel from any claim
she may have against them
under the Employment
Standards Act or provincial
‘Human Rights Code.

“(This] made me feel like
I was being extorted and
exploited,” said Mrs. Stolle,
who called the hotel’s
actions “insulting and humil-
iating.”

She finally received her
severance only after her
lawyer contacted the hotel.

The general manager
admitted he’d been hired to
help streainline operations at
the hotel and had let go sev-
eral employces during the
course of restructuring. Bur
he denied any intention of
eliminating Mrs. Stcile’s
position while she was on
maternity leave.

At trial, the judge decided

that Mrs. Stolle had been
fired without cause. She was
therefore entitled to sever-
ance pay. He noted that
while the Employment
Standards Act sets the mini-
MUM severance an employer
must pay, an employee may
be entitled to more. He
found that Mrs. Stolle
should, in fact, have been
given tive months” statutory
severance pay.

The judge alse concluded
thar the hotel was guilty of
“high handed conduct” by
withholding her severance
unless she signed « release.
He relied on an carlier
Supreme Court of Canada
case that condemns employ-
ers who callously and insensi-
tively dismiss employees, and
he awarded Mrs. Stolie an
additional three months’ pay,
for a total of $22,400. “The
additional notice period...
properly deals with the
insensinve manner which the
detendant dealt with the
plaintiff,” said the judge.

This decision emphasizes
the fact that it is improper to
withhold payments to
employees that are required
under the Employment
Standards Act. However, it is
permissible to pay out the
amount required under the
Act, but withiiold any addi-
tional severance offer until a
release is signed by the
employee.

~- This column has been
written with the assistance of
Daryl Collier of the North
Vancouver law firm of
Ratcliff & Company, Suite
500, 222 West Esplanade, 988-
5201. The column provides
information only and must not
be relied on for legal advice.

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