Employee reaction often deciding factor
The questions regarding what will, and will not, constitute just cause for dismissal seem to be never-ending. This is not particularly surprising, given that courts have made it clear any allegation of just cause must be considered using a contextual approach, which looks at not only the alleged behaviour but the entirety of the employment relationship.
Typically, parties will look at the incident or behaviour in question and the relationship prior to the alleged incidents, including the length of service, any disciplinary history and the employee’s contributions to the organization. However, in many cases, the deciding factor seems to be how the individual reacts when the allegation is put to him.
While intended to ensure a sense of fairness and proportionality, the contextual approach has the effect of making just cause a perpetually grey area, without hard and fast rules employers can rely upon to assess particular situations.
The fundamental question is whether or not the employee has irreparably harmed the relationship to the point it would be unreasonable to expect the employer to continue the employment relationship. It goes without saying that, 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 really just a misunderstanding. In one case I was recently consulted on, the 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.
In other cases, the investigation gives an employer the opportunity to assess an individual’s response, and decide whether it is compatible with a continued employment relationship. In Obeng v. Canada Safeway Ltd., a first assistant manager was accused of stealing groceries from the store where he worked. The evidence at trial suggested a variety of reasons why the employer may have had good reason to believe he stole groceries. The evidence was also quite clear that policies were in place to address this type of behaviour, and were well-known to the employees, including the first assistant manager.
The British Columbia Supreme Court found Safeway did have just cause to dismiss the worker. However, the focus was not on the alleged act of theft so much as it was on the employee’s behaviour in the course of the investigation. Among other things, 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 on Oct. 28 justifies his termination,” said the court, and “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.”
In many cases, an employee’s response makes the difference. If she owns up to the inappropriate behaviour, apologizes and provides appropriate assurances that 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 more inclined to agree with the decision to terminate, even when the infraction in question was not as egregious.
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson’s Toronto office. He can be reached at (416) 595-8672 or [email protected].
It’s possible to fire workers for cause
Employers can take a number of lessons or key points from Obeng v. Canada Safeway Ltd.:
• 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, courts do seem willing to accept some circumstances in which an employer should not be expected to continue the employment relationship.
• If an employer is considering an allegation of just cause, it is crucial to investigate fully and fairly before any decision is made.
• Employers should be particularly mindful of the employee’s reaction when confronted, as well as any efforts to conceal the wrongdoings. These will be crucial factors in determining whether to proceed with a summary dismissal.
