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Getting the message across

Employers can look bad when an employee guilty of misconduct is not dismissed, so what should they do?

By Stuart Rudner

Recently, I gave a presentation to a senior group of HR professionals in Toronto. The topic was “Dealing with Allegations of Harassment.” In the course of discussing how to investigate allegations of harassment, and the options available to an employer at the end of the investigation, I provided an overview of the law of summary dismissal. This led to a very interesting question from one of the attendees relating to the unintended messaging that may be conveyed to other employees when someone who is known to be guilty of misconduct is not dismissed.

As I have discussed on many occasions (here and here), the assessment of whether an employer has just cause for dismissal can never be based solely on the misconduct in question. Rather, the employer must adopt a contextual approach and consider all relevant circumstances.

As I often state when discussing this topic, the same set of facts can yield different results. In other words, two employees may be guilty of the exact same misconduct. However, if one is a long-serving employee with a clean disciplinary record who owns up to his mistake, references legitimate mitigating factors and provides reasonable assurances that it will not happen again, while the second employee has only been employed for a tumultuous few months, lies and takes deliberate actions to cover up her misconduct, and effectively leaves the employer unable to trust her going forward, it is quite likely a court would agree there is just cause to dismiss the second employee while the first employee should be given another chance.

The question that was raised was what, if anything, the employer can do to address the fact the other employees may be aware of the fact that both of these individuals were guilty of misconduct, but only one was dismissed. They could potentially interpret that as a signal the misconduct was not deemed to be serious.

Or, in another scenario, one individual engages in misconduct, which is widely known, but the employer assesses all factors and decides summary dismissal is not warranted. What do the other employees think, seeing this individual continue to come to work every day?

In light of privacy legislation, it is not open to the employer to discuss the specific discipline that was imposed upon another employee or the reasons for why discipline was or was not imposed. However, this could lead to a misperception the employer does not take discipline seriously.

Since authoring You're Fired! Just Cause for Dismissal in Canada, and even before, I have given many presentations on the law relating to summary dismissal. In almost every one, I have given the example of the two employees who engage in the same misconduct with different results. I had never encountered this question before, and thought it was quite an insightful one. It is also a challenging question, given that the employer will not be able to comment on the discipline of specific employees. However, particularly where the misconduct itself was serious, the employer does not want others to assume that it will not be treated seriously.

One option I thought of during the presentation was that while the employer cannot discuss specific employees, it can discuss principles of discipline and dismissal. As such, it would be open to the employer to give a presentation on those topics, perhaps in the context of a policy review. In the course of discussion, it could mention the fact that discipline is not determined based upon the misconduct alone, but in light of all relevant factors.

Hopefully, most other employees would be able to connect the dots and recognize that was the reason why, in the situation that arose, one employee was dismissed and the other was not.

Obviously, this is an important question as one of the purposes of discipline is to establish and confirm expectations. Consistently enforcing policies and disciplining offenders is important so an employer can avoid allegations of condonation and also ensure employees understand that misconduct will be taken seriously.

That message may become weakened if they see employees engaged in misconduct but do not see that discipline was imposed. While employers cannot discuss the specific discipline handed out to other employees, they can discuss general principles in a manner that should send a clear message.

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Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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