'Follow your progressive discipline process, even when it's uncomfortable to do so'
A college instructor’s inappropriate and insubordinate behaviour would have been just cause for dismissal, but he is entitled to pay in lieu of notice because he wasn’t warned or given an opportunity to improve, the New Brunswick Court of King’s Bench has ruled.
“This an interesting case, because it highlights how employers can get themselves in trouble when they don't follow their own processes or the processes that are downloaded on them by the law,” says Chris Pelkey, an employment and labour lawyer at McInnes Cooper in Fredericton.
“The court actually said that in normal circumstances, it would find that there was just cause to terminate the employee, but the employer didn't really do its job in this case.”
Instructor hired in 2012
The 53-year-old worker was an academic instructor at the Maritime College of Forest Technology in Fredericton and Bathurst, NB, hired in 2012. Before joining the college, he was employed with the New Brunswick Department of Natural Resources for 15 years. He reported to the college’s executive director.
In 2014, the worker was reprimanded for publicly expressing views against the use of the herbicide glyphosate using college letterhead. The worker acknowledged the error and apologized.
In 2017, a new executive director was hired, but the worker wasn’t pleased with the choice. The new director also wanted to take a less rigid approach and be more welcoming, with which the worker disagreed, leading to tension between them. The worker believed in rigid standards for class punctuality, a dress code, and no hats allowed in classrooms or the cafeteria.
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New academic chair position
In the summer of 2018, the worker applied for a new position of academic chair. The position was awarded to another candidate, although the worker believed that he was the most qualified person. Over the next year, the worker had a strained relationship with the academic chair. The latter received complaints about the worker from students, but he didn’t discuss them with the worker because their interactions were stressful.
In late 2018, the executive director and the academic chair decided that the worker’s employment should be terminated, but they wanted to wait until June 2019 to avoid disrupting the academic year.
This issues with the worker included setting the classroom clock wrong to serve his own agenda, physically removing student hats, discrediting presenters for an upcoming conference – including federal scientists and employees of a major forestry company - disrupting the presentation itself with inappropriate questions and comments, and not showing respect to the academic chair and students. The college also received multiple complaints about him from students and the parents of students.
The worker’s potential termination was raised at the executive committee of the college’s board of governors in April 2019, which determined that the worker’s disciplinary approach to students, disrespect for other faculty and management, and undermining of his supervisor’s authority was grounds for dismissal. The worker’s employment was terminated on June 20.
The termination letter set out eight reasons for termination, including preventing late students from entering the classroom, removing the hats of students, making inappropriate comments in class, undermining the presenters at the conference, and failing to follow instructions from his immediate supervisor. The letter stated that his conduct violated policies related to student discipline and workplace harassment.
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Worker’s side business leads to issues
The worker had a small business in urban tree removals and making ax handles, which he continued to run after his dismissal. He soon found employment with a political party and then in the forestry industry in May 2022 after running as a candidate in the 2020 provincial election.
The worker commenced a wrongful dismissal action, alleging that his dismissal was vindictive, and the college didn’t give him any warnings or share the reasons with him. He also argued that he was actually fired because of his views on glyphosate, which were unpopular with a prominent company in the forestry industry. He claimed 14 months’ pay in lieu of notice plus moral, aggravated, and punitive damages for bad faith in the manner of his dismissal.
The court noted that the evidence indicated that the worker had “strong convictions” and a “rigid personality” that caused friction with colleagues and his supervisors, and everyone avoided confrontation with him because it would be difficult. However, this resulted in the executive director and the academic chair avoiding addressing their concerns with the worker. By late 2018, they decided to “simply ride out the balance of the academic year” and terminate the worker’s employment at the end, the court said.
The court found that the worker’s treatment of students and colleagues was unacceptable and his behaviour toward his supervisors was insubordinate. Had the worker been given clear warnings about his conduct and didn’t change, the college would have just cause for dismissal, said the court.
However, no such warnings were given and the worker was allowed to continue with his behaviour. The college argued that giving the worker warnings would have been pointless given his rigid personality, but the court said that the worker should have been given the opportunity to change. Without that, the college did not establish just cause, the court said in determining that the worker was entitled to common law reasonable notice.
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Progressive discipline key
The court reinforced the idea that progressive discipline is still key when dealing with issues like personality conflicts, insubordination, and inappropriate conduct that on its own may not rise to the level of just cause, says Pelkey.
“If an employer is dealing with an employee who's conducting themselves inappropriately, they need to let them know that their employment is in jeopardy, and they need to give them a chance to curb and improve their behaviour,” he says. “In this case, the employer didn't do that -they had a lot of these conversations in the background among themselves where everybody agreed that the conduct was inappropriate and the employment relationship with deteriorating, but they never made the employee aware of these issues in any sort of substantive sense.”
The court found that the worker had specialized training but also a “diverse background and a wide variety of skills,” which allowed him flexibility, as evidenced by his working for a political party and then finding full-time work in the forestry industry. The court found that the worker was entitled to seven months’ pay in lieu of notice.
The court disagreed that moral, aggravated, or punitive damages were appropriate, as there was no evidence that the worker was fired for his views on glyphosate or that the reasons for dismissal weren’t stated in the termination letter. With no evidence of egregious or malicious conduct by the college, there was no reason for extra damages, the court said.
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Good documentation
The college did a good job refuting the worker’s claims that the real reason for his dismissal was for his views on glyphosate with good documentation, says Pelkey.
“They saved several emails from the employee and they'd gotten complaints in writing that showed there was conduct that had nothing to do with his views on glyphosate and warranted dismissal,” he says. “Employers can see how if they don’t paper their file, retain those documents, and document the steps they take, how they could get themselves in trouble - if an employee alleges something like a conspiracy, then it becomes a he-said, she-said situation if you don't have that evidence to back it up.”
The court declined to deduct income from the worker’s side business from the damages, as the worker would have been earning that money had he still been working at the college. The college was ordered to pay the worker seven months’ wages, or $48,644.57 plus costs.
“You’re going to have to follow your progressive discipline process, even when it's uncomfortable to do so,” says Pelkey. “And that means having those conversations, those sit-downs with your employees, delivering them those letters saying, ‘Here's what you're doing wrong, here's what we expect, and here's how things are going to play out if you don't improve.”
