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Don't shoot first and ask questions later

Alberta case highlights perils of dismissing an employee for cause
Employment law
Kerry Lalonde worked at Sena Solid Waste Holdings in Edmonton. Google Street View

By Stuart Rudner

A recent court decision provides an excellent example of what happens when employers decide to, as the judge put it, "Shoot first and ask questions later."

In Lalonde v Sena Solid Waste Holdings Inc,, the employer took the position that it had just cause for dismissal and fired the plaintiff as a result of alleged misconduct for which he had already been suspended.

To make matters worse, there was evidence that the actions of the employer, which were found to have been taken in bad faith, caused significant stress and other injuries to the plaintiff, Kerry Lalonde.

From a reading of the trial judge’s decision, it appears the lawyer had abandoned the position that there was just cause for dismissal prior to trial, as it was not even an issue that was addressed in the decision. As a result of the way the dismissal was handled, the employer ended up paying far more than it would have if it had simply dismissed the plaintiff on a without-cause basis and provided the required amount of notice or pay in lieu.

The suspension and eventual dismissal related to alleged breaches of policy and insubordination were completely denied by the plaintiff. Furthermore, the evidence was that the plaintiff had made efforts over an extended period of time to discuss the matter and provide his side of the story, both during and after the suspension, but was never permitted to do so.

According to the decision:

On August 17, 2012, he received an email from the defendant’s human resources manager, Yvonne Bur. In that email, which was copied to a number of other senior employees, Ms. Bur states:

‘During our investigations, we identified the following:

(a)      Failure to meet your employee responsibilities as per Section 3.1 of the SHTC Safety Manual which reads: “Take reasonable care to protect the health and safety of himself/herself and other workers in corporation with the employer.”

(b)      Failure to follow safe work procedures as per section 17.1 of the SHTC Safety Manual and obtain a work permit.

(c)      Failure to follow incident reporting procedures as per section 13.3 of the SHTC Safety Manual and report any incidents immediately to your immediate supervisor or his/her delegate.

(d)      Failure to follow your supervisor instructions that scrap steel/metal was only to be discarded in the large “Maple Leaf Bins.””

While the employer defended its process and referenced the fact it had undertaken an investigation, the judge found the investigation was not objective and the employer had effectively made the decision to dismiss the plaintiff prematurely:

“[66]           One can characterize what happened here as a case where the defendant decided to “Shoot first and ask questions later.” It is unclear why the defendant maintained, what they now readily agree, were unsubstantiated allegations for so many years.

[67]           The defendant suggests that its actions throughout were appropriate. It points to the investigation that was undertaken to determine whether the plaintiff should be dismissed. However, clearly missing from that investigation was any serious consideration of the plaintiff’s side of the story. I find that the plaintiff was never given a proper opportunity to present his side of the story both prior to being suspended and prior to being fired.

[68]           The evidence suggests that the defendant had made up his mind to dismiss the plaintiff within days of his suspension, therefore supporting the conclusion that the investigation was at best incompetent and unfair and at worst a sham. The defendant clearly ignored or failed to give proper weight to information it received from another employee (Larry Dakin) who was present at the tailgate meeting on June 13, 2012. Mr. Dakin supported the plaintiff’s account of what happened at the tailgate meeting.”

As a result, the court found that the employer had breached its duty to act in good faith in the course of dismissal and the plaintiff was awarded $75,000 over and above the pay in lieu of notice. As the court found:

“[69]           In Keays v Honda Canada Inc, 2008 SCC 39 (CanLII), the Supreme Court summarized the law surrounding damages that may result from the manner of dismissal. Beginning at para 57:

Damages resulting from the manner of dismissal must then be available only if they result from the circumstances described in Wallace, namely where the employer engages in conduct during the course of dismissal that is "unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive" (para. 98).…

[72]           In this case, I am satisfied that the actions of the defendant amount to a breach of the obligation of good faith and fair dealing and support an award of aggravated damages. Those actions include the following:

1)      The plaintiff was summarily terminated after being accused of serious safety violations and insubordination relating to alleged retention of salvageable equipment and scrap metal and failure to supervise an unassigned contract worker.

2)      The defendant maintained these allegations which are described in the Statement of Defence as “serious safety violations and insubordination” from the date of suspension in June, 2012 until shortly before trial in May 2017 at which time they withdrew those allegations.

3)      Two days after the plaintiff’s suspension, without regard for his explanation and without giving him an opportunity to fully explain the alleged misconduct, a decision was made to terminate his employment on the 15th of June. An internal memo from the maintenance manager, Mr. Goegan, to the HR manager, Ms. Burr, shows a decision had been made to terminate the plaintiff; this despite not having any response from the plaintiff as to the alleged breaches of conduct. The defendant ignored a letter from an employee (Larry Dakin) which supported the plaintiff’s contention that he had done nothing wrong in relation to the alleged lack of supervision of a contract employee. The evidence supports the conclusion that the internal investigation was essentially a sham.

4)      The nature of the allegation concerning the mishandling of salvageable equipment and scrap metal implied some form of illegal conduct or dishonesty on the part of the plaintiff. This suggestion can be found in the Statement of Defence where the defendant outlined in detail the alleged cause for termination using such wording as “the plaintiff’s serious safety violations and insubordination.” The Statement of Defence suggested that the dismissal for cause included “unsatisfactory performance, dishonesty, insubordination, serious misconduct.” In the Statement of Defence the plaintiff’s misconduct is described as constituting “serious misconduct, insubordination and conduct constituting cause.” It is stated that “the plaintiff’s misconduct was such that it interfered with and prejudiced the safe and proper conduct of the SHTC thereby, justifying cause for immediate dismissal.”

[70]           The Alberta Court of Appeal considered the issue of aggravated damages in Elgert  v Home Hardware Stores Ltd, 2011 ABCA 112 (CanLII), though the court held at para 73:

Damages resulting from the manner of dismissal (as opposed to the fact of dismissal) are available, however, if damages arise out of the conduct of the employer in the course of termination. To be compensable, such conduct must be unfair or in bad faith, in that it is “untruthful, misleading or unduly insensitive.”

While there was no expert or medical evidence regarding the damages suffered, the court found sufficient evidence on which to make an award:

[28]           A letter from the plaintiff’s wife, Rena Lalonde, was entered as an exhibit. It describes the negative impacts that the dismissal had on the plaintiff. The impacts included a change in his personality and a loss of interest in family and other matters. Ms. Lalonde believes that the worst part for the plaintiff was the humiliation he suffered while being escorted off the facility followed by the treatment he received from SENA management and the HR department in the weeks that followed his dismissal. She described the plaintiff as being depressed, miserable, isolated and angry. She believes he has mental health problems and has not recovered from the firing. In the letter Ms. Lalonde mentions an incident when the Plaintiff was told that the general consensus around the plant was “Lalonde got fired because he was stealing.”

[29]           The plaintiff testified that the dismissal caused him a lot of stress and has had a negative impact on his life.”

As we always advise our clients:

  • Never react in haste.
  • Investigate fairly and objectively.
  • Dismissing an employee for cause in an attempt to avoid termination pay will often end up being far more expensive.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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