Theft, violence, harassment and serious reputational damage — these might all seem like pretty solid reasons for a just cause dismissal. But the reality is there is no single umbrella offence that is guaranteed grounds for a summary dismissal.
“What I find surprises most people is that there are no absolute rules whatsoever when it comes to what will constitute just cause for dismissal. So there’s no particular act that will guarantee that just cause will be found,” says Stuart Rudner, founding partner of Rudner MacDonald in Toronto.
“The example that most people throw at me… is ‘What about theft? Surely if I catch employees stealing, I can fire them?’ And the answer is what it always is with employment lawyers: It depends.”
There is no automatic yes or no answer, even when it comes to seemingly obvious offences such as stealing, says Rudner.
“The example I often give people is, of course, if you catch your CFO having embezzled millions of dollars, then odds are very strong that you’re going to have just cause to dismiss them. But what if you catch your construction working having grabbed a couple of bolts to take home for a project they’re working on in the evening or… your assistant takes a pencil home so that her daughter can do her homework that night? Most of those are technically theft, but I would be surprised if most people would fire their employee because of it,” he says.
“Even when it comes to theft, there are definitely shades of grey and not all thefts are equal. And definitely not all are going to warrant summary dismissal.”
Even violence no guarantee
Even when it comes to violent conduct in the workplace, there is no guarantee a court or arbitrator will uphold a summary dismissal, says Rudner.
“There’s often an assumption that if one worker physically assaults a colleague, that’s going to be just cause for dismissal. And there have been plenty of cases where that takes place where the courts have found that there wasn’t cause for constructive dismissal.”
There was one case, for example, where an employee had punched a colleague in the face. The employee was terminated — but the court disagreed.
“The courts took all of the relevant factors into account and determined that, in the circumstances, summary dismissal was too harsh a penalty,” says Rudner.
Another interesting example is the 1998 case Redfearn v. Elkford, according to Hendrik Nieuwland, partner at Shields O’Donnell MacKillop in Toronto.
“In this case, a clerk who worked for a municipal district had some mental stress, alcohol abuse, depression, and during one of the sessions he had with a social worker, he threatened to kill himself and to kill the mayor. So that social worker quite rightly contacted the RCMP, the RCMP contacted the mayor, and this guy got fired. But he sued, and the court found that there was no just cause and said that instead they should have just suspended him,” he says. “I don’t think that a case with a set of facts like that would have a similar outcome in a post Bill-168 world — at least, it wouldn’t in Ontario.”
Even after the implementation of Bill 168, which is much stricter on issues of workplace violence, there have been some very surprising cases, says Nieuwland.
“The first one is called Shakur v. Mitchell Plastics from 2012. That cause involved two co-workers getting into a verbal altercation, and then one co-worker ended up slapping the other one. And he got fired for cause, and the judge found that there was no cause in part because the judge said there wasn’t sufficient training given to employees about the workplace violence policy — which I find astonishing,” he says.
“A similar case (was) called Phanlouvong v. Northfield Metal Products. This is a 2014 decision, and similar type of thing — you’ve got a relatively long-service employee… and here you’ve got two co-workers who don’t get along. (There was a) verbal altercation leading one to punch the other, breaking his glasses and giving him a bloody nose.”
That employee was also terminated for cause, but it was overturned by the courts.
“The court said even though the person who did the punching was the aggressor, even though the conduct violated Bill 168, that doesn’t mean you automatically get to fire somebody for that kind of conduct,” says Nieuwland.
How much do mitigating factors matter?
Assuming an employer can prove an employee engaged in misconduct, that proof is only the first step in the process, says Rudner.
“The second step is to assess what type of discipline is appropriate, and whether summary dismissal is appropriate or not, bearing in mind all the relevant factors,” he says.
“One of the key things our courts (say) is ‘You don’t look at it in isolation — you look at all the key factors,’ which would include things like how long they’ve been employed, whether they’ve been in trouble before, what kind of job they have and how much trust is required, and also how they respond when you confront them. Does their response make it clear that they can’t be trusted or does it help to resuscitate the relationship? So all these things are factors.”
One interesting example of a case where mitigating factors were enough to win a wrongful dismissal case was the 2007 Soplet v. Bank of Nova Scotia, says Nieuwland.
“In that case, a guy admitted to purchasing marijuana in the workplace… he purchased it on the bank premises and admitted to it, and was fired for cause. And he brought a wrongful dismissal complaint and was successful. The (adjudicator) found that there wasn’t cause in the circumstance because it only happened once, the purchase didn’t occur where the public had access — even though it was on Bank of Nova Scotia property. And so he got damages.”
That’s why employers need to take note of people’s backgrounds in terms of their performance record and discipline history.
“That’s always a requirement and it always has been, but there was certainly a thought after Bill 168 came out that prior unblemished records might not be enough to save you if you engage in violence, said Nieuwland.
“But it appears that the courts are not following that line of thinking. They’re still doing the standard analysis of look at their mitigating circumstances like an apology, a clean record, no prior discipline, those types of things that mitigate the offence,” he says.
Emotional reactions, PR strategy
It’s also important that in certain cases where emotions may be running high — such as sexual harassment or reputational damage — employers must never react emotionally, says Rudner.
“Even if you think that someone is guilty of something serious — sexual harassment, making comments about the company online, whatever the case may be, always take the time to investigate, first of all, to ensure that your suspicions are accurate, but even if we assume that they are, that doesn’t mean you can fire them,” he says.
“You have an employee engaged in misconduct, that’s going to be cause for discipline, but it’s not necessarily cause for dismissal.”
Also, there are some types of misconduct that are particularly sensitive these days, such as sexual harassment or bullying, says Rudner.
“Even in those cases, you’re going to have to look at all the factors and assess whether summary dismissal is a disproportionately harsh penalty or whether it’s appropriate.”
It’s the exception to the rule, but another point to consider is weighing the legal implications with the public relations ones, says Rudner.
The recent Hydro One firing of Shawn Simoes is one example (see cover story).
“From a legal perspective, it would have been wise to take their time and consider their response. From a PR perspective, I think, it was quite strategic to react quickly. But I suspect they realized they would have to deal with the legal fallout later,” he says.
“In most cases, you’ll have a stronger defence if you can show that you investigated thoroughly and objectively, and also considered your options before hastily firing the person.”
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