Employee behaviour during investigation can be as damaging as the misconduct
Questions on what constitutes just cause for dismissal seem to be never-ending. That is not surprising, given the Canadian courts have made it clear any allegation of just cause must be considered with a contextual approach, examining not only the alleged behaviour, but also the employment relationship as a whole. Typically, employers will look at the misconduct and the relationship prior to it, including the employee’s length of service, disciplinary history and contributions to the organization. However, in many cases, the deciding factor seems to be the manner in which the employee reacts when the accusation is made.
Full and fair investigation can benefit both sides
While intended to ensure a sense of fairness and proportionality, the contextual approach has the effect of making just cause a grey area, without hard and fast rules employers can rely on. The fundamental question is whether or not the employee has irreparably harmed the relationship to the point it would be unreasonable to expect to continue the employment relationship. If an employer believes it may have just cause to dismiss an employee, it must conduct an appropriate investigation before acting. The exact nature and extent of the investigation will depend upon the allegations and the circumstances, but there is a general obligation to investigate fully and fairly, and to react and discipline accordingly.
Sometimes, the investigation may reveal the “cause” was just a misunderstanding. In one recent example, an employer narrowly avoided an embarrassing mistake by properly investigating an incident before dismissing an employee who, it turned out, had a perfectly legitimate explanation for his seemingly inappropriate behaviour.
Behaviour during investigation can be factor in dismissal
The investigation may give the employer the opportunity to assess the employee’s response and whether it is compatible with a continued employment relationship. In the recent case of Obeng v. Canada Safeway Ltd., a first assistant manager of a Vancouver-area Safeway store was accused of stealing groceries. There was a variety of reasons why the employer had good reason to believe the employee had stolen groceries and Safeway had policies to address this type of behaviour, which were well-known to the employees, including the assistant manager.
Ultimately, the British Columbia Supreme Court found Safeway did have just cause to dismiss the assistant manager. However, the focus was not on the alleged theft so much as it was on the employee’s behaviour during the investigation. He failed to provide full and truthful disclosure when confronted, preferring to simply deny the allegations without further comment or detail.
“Mr. Obeng’s dishonesty in relation to the investigation of his conduct justifies his termination,” the court said. “By failing to respond in a complete and truthful manner, Mr. Obeng breached the implied duty of honesty and faithfulness owed by him to Safeway.”
Often, the difference between finding summary dismissal was warranted or lesser discipline was appropriate is the manner in which the employee responds when allegations are made. Where an individual owns up to the inappropriate behaviour, apologizes and provides assurances it will not happen again, the courts seem to be inclined to give her another chance. Conversely, in situations where an individual has denied the conduct, and perhaps even taken steps to cover it up, the courts seem to be more inclined to uphold termination, even when the infraction in question was not as egregious. This is part of the flexibility or discretion in the contextual approach. The context includes not only the employment relationship up to the date of the alleged infraction, but also the employee’s subsequent behaviour.
Employers can take a number of lessons or key points from Obeng. First, the concept of just cause is not a lost cause. While many employers are reluctant to even consider summary dismissal, preferring to simply package out troublesome employees, the reality is courts are willing to accept there are some circumstances in which an employer should not be expected to continue the employment relationship. Second, if an employer is considering an allegation of just cause, it is crucial to investigate fully and fairly before any decision is made. Third, as part of the investigation, employers should be particularly mindful of the employee’s reaction when confronted, as well as any efforts to conceal the wrongdoings. These are crucial factors in determining whether to proceed with a summary dismissal. See Obeng v. Canada Safeway Ltd., 2009 CarswellBC 8 (B.C. S.C.).
