Firing nanny leads to battle over severance pay
Labour Standards says two weeks' severance owed
An alleged assault by a nanny is spurring a Vanscoy woman to fight the province's Labour Standards office, and call for a change in the law.
At issue is whether Michelle Linklater should be forced to fork over two weeks' severance pay after firing the woman, allegedly because she assaulted her daughter.
Linklater's 17-year-old daughter Jennica has severe autism. She does not talk, does not use sign language, and doesn't have very good physical co-ordination.
Linklater says one day last year, she was making supper when she heard Jennica screaming and crying. The nanny was bathing her.
She was yanking hair like with a comb out of her head- Michelle Linklater
"I told my guest, you know, I had to go see what was going on because she doesn't scream," Linklater said. "I went into my bedroom — which the bathroom is off to the side — and I saw my nanny have her left hand on my daughter's hair and with the other hand she was yanking hair like with a comb out of her head."
Text message apology
Linklater says the screaming and crying was a clear signal for the nanny to stop.
She showed the CBC what she said was a text message from the nanny saying, "Michelle, I'm very very sorry for what I've done I have no intension (sic) of doing that."
Linklater said it had not been the first incident that made her concerned for her daughter's safety, and she wanted to make sure nothing else bad happened, so she let the nanny go.
The nanny was charged with assault, but the charge was stayed. The crown prosecutor said there was no reasonable likelihood of conviction based on the evidence, but was not at liberty to explain any further.
Was firing for 'just cause'?
Linklater then got a letter from Saskatchewan Labour Standards saying there was "no strong evidence that there was an incident that was so severe that immediate termination without notice was warranted."
The province's Labour Standards Act allows employees to be fired without severance for 'just cause', but that term is not defined in the act.
Investigators, lawyers and judges rely on case law — precedents set in other cases.
It doesn't necessarily take a criminal conviction to prove just cause, said Glen McRorie, director of compliance and investigations in the province's Labour Standards Division.
There's always, of course, two sides to the circumstances- Glen McRorie, Labour Standards
"Certainly if there was assault on anyone including of course a vulnerable person that would be just cause for terminating the employment relationship," McRorie said.
"Whenever we have claims filed with us there's always, of course, two sides to the circumstances."
"It's up to the officer to investigate that, to assess the evidence; to assess the in some cases the credibility of the witnesses and so on and so forth," he added. "You know there are some circumstances where there is a he said, she said, and those are challenging issues for us."
Wants law changed
McRorie said his staff sometimes recommend just quietly working out a settlement to be rid of an employee.
However Linklater said she's not willing to do that.
"What am I saying to my child?" Linklater asked. "This is what we do, we just pay people and get them off of our back? No, that's not the right answer."
"The right answer is Labour Standards needs to define their definition more clearer in their 'Rights and Responsibilities', what is proper just cause or not," Linklater said.
She wants a change in legislation, giving employers more say over what warrants firing without severance.
In the meantime, she is appealing the order to pay severance to the fired nanny.
A hearing is being scheduled for early December.