Petition could raise areas of concern but employer must investigate further
Question: Can an employer that serves the community terminate with cause based on a petition of community members?
Answer: The short answer: You cannot summarily dismiss an employee based solely upon a petition of customers/community members.
The long answer: Employees can be dismissed for cause when their misconduct or performance is so egregious that the employment relationship has been irreparably harmed. The difficulty is determining when that line has been crossed. In any situation where an employee engages in misconduct, the employer must take a contextual approach in assessing whether just cause for dismissal exists. This approach involves considering not only the misconduct in question, but the entirety of the employment relationship. It would include the length of the employment relationship, the nature of the employee’s position and duties, any prior discipline and any other contextual factors relating to the relationship or the misconduct. The misconduct cannot be considered in isolation. It is only once all of the relevant factors have been considered that an employer, or a court, can determine whether the relationship has been irreparably harmed by the misconduct.
When faced with apparent employee misconduct, it is incumbent upon an employer to conduct an appropriate investigation. This is important for a number of reasons. In some cases, a proper investigation will reveal the employer’s initial reaction may have been unfounded and there was a reasonable explanation for the apparent misconduct. In other circumstances, the employer may confirm there was misconduct, but the investigation provides the employee with an opportunity to explain and may reveal mitigating circumstances that would preclude dismissal. Learning of such information prior to dismissal will save the employer from a potentially costly wrongful dismissal claim.
Conversely, an investigation may provide the employer with additional evidence upon which to base its conclusion that it has grounds for summary dismissal. The employee may essentially dig herself deeper into the hole they have created by engaging in dishonest and deceitful conduct which will further erode any remaining trust and demonstrate the relationship has been irreparably harmed.
In assessing whether the employment relationship has been irreparably harmed, courts and arbitrators will often consider the employee’s behaviour during the investigation. In many cases, this can be the difference between a finding of just cause and a finding that dismissal without notice was excessive. An unapologetic, dishonest employee is less likely to be given a second chance than one who admits wrongdoing and offers suitable apologies and assurances that it will not happen again.
In the context of this question, the petition may add weight to the argument that the employment relationship has been irreparably harmed, but it is equally likely to be entirely meaningless in the legal analysis. It is not the petition itself that will be relevant, but the underlying cause. If it relates to conduct or performance that would otherwise justify discipline or dismissal, it should be considered. But if it was created because some people just don’t like the employee, it will be entirely irrelevant.
It is not up to the clientele to determine when an employee is to be dismissed. They can raise issues of concern with the employer, but the employer will have to assess its right to dismiss based upon the applicable legal principles.
