Wrongful Dismissal Claim Backfires
Bernice had been working as a medical secretary for 19 years when the Ontario government declared a state of emergency on March 17, 2020, as a result of the COVID-19 pandemic. She worked 14 hours a week for a respirologist.
In response to the pandemic, the doctor allowed secretaries to work in separate rooms or on different floors, provided personal protection equipment and physically isolated Bernice on her own floor.
Bernice had experienced a heart attack the year before and had been off for four months. Her husband had various health conditions that made him vulnerable to the virus.
A week after the pandemic emergency was declared, Bernice sent an email asking to be allowed to work from home given the health of herself and her husband. The doctor denied the request but put Bernice on a two-week fully paid leave.
At the end of that time, the doctor told Bernice that as a result of a severe downturn in business and the absence of any remote-work infrastructure suitable for secretarial staff, along with confidentiality concerns, remote work was out of the question. The doctor terminated Bernice’s employment and told her she would receive one year’s pay in lieu of notice.
Bernice, who was 70 at the time, claimed this constituted discrimination on the basis of her age and her disability. She said that the doctor failed to take reasonable steps to accommodate her request.
She wanted two years’ pay and $50,000 in general damages under the Ontario Human Rights Code. Given that there was no setup at all for remote work and that remote access to medical records presented a huge confidentiality risk, the court found that the doctor had done everything she could to accommodate Bernice.
That should have settled the matter.
But after Bernice’s termination, she asked the doctor to hand over her personal medical chart. The doctor was surprised at this request since Bernice had never been a patient of hers.
About six years before Bernice was terminated, the doctor had discovered the secretary was using the clinic’s confidential medical software system to access her personal medical records. Bernice had received lots of training on this and every time you opened the software it would warn you about the confidentiality provisions. The doctor gave Bernice a stern warning and thought the problem was fixed.
But it turned out Bernice had continued to use the clinic’s confidential software system to set up a chart for both herself and her daughter, neither of whom were patients. Bernice listed the doctor as her treating physician and had hospital reports, imaging and other test results for herself and her daughter sent to the clinic for Bernice to review.
The doctor had to report herself to the College of Physicians as a result of this confidentiality breach by her clinic. The log showed that Bernice had stopped her mischief for a while after the first warning but then, unbeknownst to the doctor, had resumed the activity.
The court found that medical record confidentiality was a very fundamental term of Bernice’s employment relationship with the doctor and went to the very heart of the relationship. Even though the doctor didn’t know it when Bernice was terminated, there was actually just cause for her firing without a severance package.
Bernice was unsuccessful in her human rights complaint and after 19 years received no award of pay in lieu of notice as a result of the misconduct she exposed by asking for her medical records. Bernice would have had legal costs and she was ordered to pay those for the doctor as well. It was an expensive lesson.
It was found by the court that there was “after acquired” cause for Bernice’s termination. Just because the doctor did not know about Bernice’s abuse of the software system at the time she ended the employment relationship did not mean she could not rely on it once discovered. Bernice should have quietly accepted the one year’s pay in lieu of notice offer and counted her blessings.
This article was originally published by The Hamilton Spectator.
