Is belated honesty better than dishonesty?
Employees who lie about their misconduct often get fired, but should they be given another chance if they come clean after they’re fired?
Jun 7, 2016
By Jeffrey R. Smith
When employees are guilty of misconduct at work, they may think they can get away with it, but there shouldn’t be any doubt that if they’re caught, there will be consequences. In instances of employee misconduct, there also shouldn’t be any doubt employers have grounds to take action in the form of discipline — what level of discipline will depend on factors such as the seriousness of the misconduct and the employee’s prior disciplinary history.
It’s been said in this space before, and has been demonstrated in numerous court and arbitration decisions, that the extent to which an employer can trust an employee goes a long way towards the viability of the employment relationship. The employee’s position and level of supervision affect how much trust is needed, but there’s always some needed. That’s why employee dishonesty can be one of the worst forms of misconduct — it strikes at the heart of the employment relationship. And that’s also why employers — and courts and arbitrators — often treat dishonesty more seriously than other misconduct, especially if the employee lies about other misconduct.
Take a recent arbitration case where an Ontario municipality suspected a few arena workers of leaving work before the end of their shifts. The problem came to light when a customer using a sports field needed the lights turned on and nobody could find one of the arena workers who were responsible.
Two workers denied ever leaving work early while a third became emotional in an investigative interview and acknowledged leaving early during shift changeover once or twice a month. However, the employer had hired investigators who recorded surveillance footage of all three leaving early. The two who denied leaving early did so the most, with the third leaving early a few times.
The employer fired the two workers who had denied leaving early for not being truthful in their investigative interviews, while the third was suspended for five days.
The two fired workers grieved their dismissals, with one apologizing, saying he loved his job and leaving early just “became a habit.” The other said he had been told years earlier he could leave early if his work was done and denied seeing any of the reminders to stay to the end of the shift that the current supervisor had sent out to all employees.
An arbitrator reinstated the first fired worker — who had only a written warning on his disciplinary record — finding he had owned up to his misconduct and the employment relationship wasn’t irreparably damaged, similar to the other worker who was only suspended. However, the second worker’s dismissal was upheld because the arbitrator found the worker didn’t accept responsibility for his misconduct and tried to deflect the blame. He also had an earlier one-day suspension on his record, and all these factors would make it hard for the employer to trust him again: see Kingston (City) and CUPE, Local 109 (Loyst), Re, 2016 CarswellOnt 5512 (Ont. Arb.).
The above case is one more example of how employees not owning up to their misconduct and being dishonest about it can be considered worse than the original misconduct. A key element in determining whether an employer has just cause for dismissal is whether the employee can be rehabilitated or is likely to commit the misconduct again. If an employee lies about it or tries to deflect the blame, it’s likely she doesn’t understand or care about the misconduct and is likely to repeat it. And that makes it difficult for the employer to trust the employee again, meaning there can be no manageable employment relationship.
Another factor to consider is when an employee acknowledges misconduct. In the above case, one employee who acknowledged it right away was suspended, while another who initially denied it but then acknowledged it was fired but reinstated by an arbitrator. There are decision out there where that kind of acknowledgement was considered too late to save the worker’s employment, but it can come down to how sincere the court or arbitrator feels the fired worker is. If an employee initially denies committing misconduct but only acknowledges responsibility after she’s fired, should that be always too late, or can the employer trust her again?
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.