Is manager's negligence just cause for dismissal?
Question: Can a managerial employee be fired for just cause if he allowed harassment to happen on his watch and did nothing about it, even if he was not involved?
Answer: Employers have a high standard to meet when firing an employee for just cause. Failing to properly manage employees may justify termination for cause, if the employer can demonstrate that the manager’s conduct is “grossly deficient," and:
• Has caused the employer to lose total confidence in the manager,
• Constitutes a fundamental breach of an employer’s policy, or
• Constitutes a failure to faithfully discharge duties.
The law is clear that the employer has a duty to provide a workplace free from harassment. To achieve that goal, the employer should have a policy against harassment and the employer’s managers should be trained in detecting, investigating and addressing it.
Managers are in a position of trust and employers trust managers to ensure a harassment-free workplace. Failure to properly manage a harassment situation can result in employer liability. For that reason, a manager properly trained on a clear anti-harassment policy who stands by and does nothing (even when fully aware of harassment) may be fired for cause — in the right circumstances.
In determining whether a manager’s failure to ensure a harassment-free workplace is grounds for summary dismissal, the two-step test analysis from the Supreme Court of Canada (McKinley v. BC Tel) applies:
• Does the evidence establish the employee’s alleged conduct on a balance of probabilities — did the employee engage in the prohibited behaviour, such as failing to address known harassment at the workplace?
• If so, does the nature and degree of the conduct justify terminating employment?
As always, the facts in any given case are important. Assuming the first step is proven, the nature and degree of the conduct, in the individual circumstances of each workplace, must still be evaluated.
Dismissal for cause is more difficult if:
• The employer has not taken active steps (such as implementing a policy or training) to prevent harassment.
• The manager was not trained on the duty to prevent harassment.
• The employer itself condoned harassment in the past.
• The harassment is on the “lower end of the spectrum” of seriousness.
In these situations, a manager’s failure to act may not be seen as “grossly” deficient.
Employers and managers should also be aware that a manager who completely ignores harassment could face personal liability, particularly in the human rights context.
Note that, in all cases, an employer will need to conduct an investigation into any allegation of harassment prior to imposing a sanction such as termination of employment. The manager should be given a fair opportunity to understand, and respond to, the complaints put forward before any final decisions are made. See McKinley v. BC Tel, 1996 CarswellBC 1005 (B.C. S.C.).
