Please read the attached fact situation involving Diane Pardu and Dual Power Solar.
Diane Pardu has hired a lawyer and commenced a lawsuit against Dual Power Solar requesting damages for wrongful dismissal. Dual Power Solar filed a Defence denying the claim.
You are a judge of the Ontario Superior Court of Justice and have been assigned to hear and decide the case. The trial extends over three days and the evidence that you hear is set out in the attached document.
Your task is to write the decision in this case. The written decision must be no longer than 1,000 words (5 pages double-spaced). Please note that this is a strict word limit, not to be exceeded for any reason.
In writing your decision you will need to make sure that you:
- refer to the relevant facts;
- identify the relevant legal issues;
- determine, describe and evaluate the legal basis for Diane’s claim;
- determine, describe and evaluate the legal basis for Dual Power Solar’s defence;
- identify the relevant law; and
- apply the law to the facts of the case and come to a persuasive and well reasoned decision.Click Here to Place your order and Get 100% original paper on any topic done for Your
The applicable law is limited to the employment law material in the text and in last weeks lecture. You are not required to refer to any specific cases to your decision, but may refer to any of the cases referenced in chapter 10 (note that is the chapter number for the 9th edition of the text – the chapter number on employment may be different in previous editions, but the material is essentially the same).
This assignment is worth 10% of your final mark and will be due at the beginning of your seminar scheduled for the week of March 21st.
Diane Pardu was a full time sales representative for a small detergent manufacturer, Dual Power Solar. Dual Power Solar was a family business owned by Bob and Martha Parker. Bob and Martha’s son, Andrew Parker, was the company’s sales manager and supervised Diane.
Diane was one of three sales representatives at the company. She had been employed there for 17 years and was 49 years old.
Diane earned $51,000 per year plus $10,000 per year in commissions and also received company health care benefits (paid for by the company).
Diane did not have a written contract with the company. Last year she had asked Andrew if she could be treated as self employed (she wanted to write off some deductions for income tax) and he said “sure, why not”. So, starting in July she began remitting her own income tax and planned to claim some other deductions on her 2015 taxes. Andrew allowed her to continue to receive company benefits. Every month, Diane rendered an invoice to the company for the same amount she had previously been making.
The other two sales representatives were employees and earned about the same as Diane. Diane worked the same amount of hours as the other sales representatives, but always started a little earlier (8:30 instead of 9) and left a little earlier (4:30 instead of 5). These hours never bothered Andrew, who let her do this for many years.
Diane was well liked by the company and the clients she served and apart from one incident in 2007 (she had slept in and came into work 10 minutes late – Andrew verbally warned her not to do it again “or else”) she had no performance problems.
On March the 17th 2016 Diane, who usually does not drink, went out to celebrate St. Patrick’s Day with some friends. The next day (Monday the 18th) she was hung over and could not get out of bed at her usual time. On her way to work she pulled over and called Andrew on his cell phone. She said “Andrew, I can’t get my car to start, I am going to be a little late for work this morning”. Andrew said “no problem, that kind of thing happens to everyone just do the best you can to get here”. Diane ended up being 35 minutes late for work.
Later that morning Andrew overheard Diane talking to the other Sales Representatives at the photocopier. He heard her say that the real reason she was late was because she partied too hard at McHugh’s Pub the night before and got “totally wasted”. Andrew also heard her say that she had lied to him on the phone about the reason for being late. Andrew did not raise the issue with Diane, but wrote down exactly what he heard her say. Initially he was very upset and considered firing Diane, however, Andrew got very busy and did not have time to address the issue.
About a month later, Dual Power’s business slowed right down – the company had lost three of its major customers. Andrew had to make some changes and let some people go.
Diane heard that the company had let another sales representative (Julian) go just yesterday. She heard that Julian (who had been there 10 years) was not too upset because he received what he felt was a vary fair severance package that consisted of 9 months pay and benefits.
On April 15th, Diane was called into Andrew’s office. He advised her that business was slow and the company had to let her go. When Diane asked for the particulars of her severance package, Andrew responded “we owe you nothing because you are not an employee, and besides you were dishonest with me when you lied about the reason for being late on March 18th – how dare you even raise the issue of a severance payment!”. Andrew immediately called security (a large guy who worked in shipping nicknamed the Thing) and told him to immediately escort Diane off the property, which he did.
For the first six months after being fired, Diane did not look for a job. When her friends pointed out some opportunities that she might be well suited for she said “no, I am pretty sad about having been fired, and I am starting to really like daytime television”. Diane eventually sent out some resumes and after being unemployed for a total of 8 months, found a sales job with one of Dual Power’s competitors. Diane decided to accept the job even though it paid less (about $29,000 a year with no benefits) than her prior job.
Diane’s lawyers have since started a claim for wrongful dismissal. They have called her termination “really, really outrageous” and asked the Court to award Diane $500,000 and her legal costs. Dual Power Solar has disputed the claim saying there is no basis for the claim and calling it “a bunch of garbage and a pile of nonsense”.
You must decide if Diane’s claim should succeed and if so, what (if anything) should be the remedy.