Get out the swear jar at work

Swearing at the boss may not be sufficient cause for dismissal
By Daniel Lublin
|Canadian Employment Law Today|Last Updated: 06/28/2010

Employers often assume any misconduct is ample cause to fire their employees. Much to their chagrin, they are usually mistaken. This is the story of one employer who learned this lesson the hard way and in doing so provided a good example of when not to allege cause for dismissal.

Having worked for the same owners at Regina-based Image 1 Hair Team for 22 years, hair stylist Lenna Bohay was shocked to learn the salon’s owners had sold it to another stylist, Kelly Brown. Bohay and Brown were no longer friends, and the sale was announced to staff without any advance warning.

Upset the owners had sold the salon to Brown and distraught about her own personal life, Bohay was overheard griping about the sale and criticizing Brown’s ability to run Image 1. When Brown learned Bohay was mocking her and not taking the news well, she confronted her. The two met after work and Bohay denied making negative comments, explaining that she was having family problems. In her explanation, Bohay used the “f-word” a number of times, even directing it towards her new boss. According to Brown, Bohay told both her and the previous owner who sat in on the meeting to “f-off.”

After Bohay’s tirade, Brown went home and hoped Bohay would telephone her to apologize for her inappropriate conduct at the meeting. When Bohay did not call, she consulted a lawyer and had a termination letter drawn up. Believing Bohay’s profanity and negative attitude towards the sale of business provided ample cause to dismiss her without warning, Brown struck immediately and fired her. Bohay fought back with a wrongful dismissal lawsuit.

At the trial, Bohay's lawyer argued her conduct did not justify her dismissal because her outburst was isolated, inconsistent with her otherwise stellar career and she had not been previously warned. The judge agreed.

Most of the evidence about Bohay’s negative comments concerning the sale and Brown’s ability to run the salon was based on hearsay. However, there was no question she swore at Brown and the previous owner during their meeting. Despite this, Image 1 could not show that by directing profanity towards her boss, Bohay’s conduct amounted to cause for her dismissal without notice or pay.

According to the judge, Image 1 had an obligation to consider Bohay’s situation, including her strong employment history, her personal problems and whether her outburst was out of character. Further, for profanity to justify her dismissal, the judge said Bohay first had to be warned. Instead, Image 1 acted too quickly in pulling the trigger on Bohay’s termination and with it, had to pay damages to an ex-employee.

Tips for employers

Failing to properly assess whether misconduct is sufficient to dismiss an employee can carry an expensive price tag for employers. Courts will always consider the nature and degree of misconduct to determine whether dismissal without notice or pay is justified.

Often, only the clearest cases of misconduct will meet the heavy onus to establish cause that is placed on employers. Given this uphill battle, employers have to properly build and then advance cause cases. To do so, they should heed the following advice:

•Judges ultimately consider whether the punishment fits the crime. Therefore, “making an example” out of an employee’s behaviour is an argument that is often going to fail at trial. If the employee’s misconduct is borderline, reconsider whether alleging cause makes practical sense at all.
•Strictly follow any company policies on administering discipline, including any requirement to investigate misconduct. Many good cause cases quickly lose steam at trial where the disciplinary policy being relied on was not entirely followed.
•Before terminating an employee for cause, consider any mitigating circumstances, such as health or family problems. Courts are much more forgiving to employees when their misconduct is out of character.
•In cases where progressive or gradual discipline is being applied, warning letters must clearly state further misconduct will lead to termination without notice. Many disciplinary letters simply state that further misconduct will lead to dismissal without confirming the dismissal will be for cause.
•Ensure any discipline has been applied equally to all employees. If others have committed the same acts without discipline, it will be nearly impossible to show this employee’s behaviour could not be condoned. Similarly, if the employee’s behaviour has previously gone unpunished, she will certainly argue it has equally been condoned.
•Act on allegations of misconduct once you become aware of them. Showing lassitude towards the employee’s behaviour will all but defeat your case — before it ever really begins.

Daniel A. Lublin is a Toronto-based partner with Whitten & Lublin LLP, a team of legal experts who provide practical advice and advocacy for workplace issues. He can be reached at dan@toronto-employmentlawyer.com.

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