Kelowna business that fired manager after she called in sick on the hook $24,000

The BC Human Rights Tribunal has called a Kelowna company’s decision to fire a manager after she called in sick “callous” and ordered the owners to pay the former manager $24,000.

According to a recently published Aug. 21 BC Human Rights Tribunal decision, Caretenders Retirement Living owners Vernon Miller and Cindy Makarenko fired former facilities manager Penny Christensen a week after she went on sick leave due to stress.

The decision says Christensen had worked at Heaton Place, a retirement village in Armstrong, for five years, when in 2019 she had a “mental breakdown” and her doctors wrote her a note saying she needed to take a couple of weeks off work.

About a week later, Miller and Makarenko, who are spouses and own the company, fired Christensen.

The former manager then took the couple to the BC Human Rights Tribunal.

Miller and Makarenko denied discriminating against her and argued she was fired for poor performance.

However, while the BC Human Rights Tribunal recognized that Miller and Makarenko weren’t happy with the way Christensen’s employment was going, and they may have gotten rid of her in the near future, the Tribunal Found Christensen’s disability was a factor in their decision to terminate her.

“(Miller and Makarenko) terminated her employment at a time when she was vulnerable, having just commenced a medical leave because of a mental disability,” the Tribunal said in the decision. “I find the termination in these circumstances was callous, and (Miller and Makarenko) disregarded any impact of the termination on Ms. Christensen at a time when she was vulnerable.”

The decision says Christensen was passionate about her job and the residents that she helped care for. 

However, the company owners were concerned with how much overtime she was working and how many hours in lieu she was owed, and her inability to delegate tasks.

The company emailed Christensen, telling her there was going to be an investigation involving her time in lieu. At roughly the same time, Christensen went to the doctor who gave her a note saying she needed at least two-and-a-half weeks off work.

Shortly afterwards, she was sent a letter terminating her employment and giving her five weeks’ pay. The letter said she could get an extra week if she signed a “full and final release” agreeing to absolve them from any legal claim she might have against them.

Christensen never signed it. 

The matter was heard over the course of a 10-day hearing, with the decision going into a play-by-play account of what was said at the time.

“Mr. Miller’s testimony was punctuated by disparaging, unsolicited comments about Ms. Christensen. He referred to her on at least one occasion as ‘that woman,’ and frequently interjected derisive comments in response to serious questions about her performance issues,” the Tribunal said. 

The Tribunal ruled that Miller had a “significant bitterness” toward Christensen, which influenced his testimony.

“Overall, I find that Ms. Christensen’s testimony was direct, consistent, and aligned with the documentary record. In contrast, I found Ms. Makarenko’s evidence about her knowledge of Ms. Christensen’s mental health issues was sometimes evasive, and did not align with the documentary record,” the Tribunal ruled.

The Tribunal said that Makarenko refused to acknowledge that she was aware Christensen might be experiencing some health issues, even after she’d acknowledged receiving at least one doctor’s note.

“I find this answer to be self-serving in the circumstances,” the Tribunal ruled.

“On balance, I accept that Ms. Christensen spoke to Ms. Makarenko on several occasions about being burned out and overwhelmed at work, and asked Ms. Makarenko to hire additional staff to help her. I further accept that Ms. Christensen advised Ms. Makarenko that she had been seeing a mental health professional to deal with her stress,” the Tribunal said.

Ultimately, the Tribunal ruled Christensen’s mental disability was “at least a factor” in the decision to fire her.

While Christensen wanted $200,000 for lost wages, the Tribunal ruled she would likely have only worked there another month and awarded $7,884 instead, plus $15,000 for injury to her dignity, feelings, and self-respect.

Miller and Makarenko had wanted Christensen to pay their legal fees, citing “improper conduct,” and that the hearing took 10 days instead of five. 

However, the Tribunal dismissed the argument, and pointed out that the extra time was caused by Miller and Makarenko’s lawyers and “at least in part,” to evasive answers from their witnesses on cross-examination.”