Employee threats not a ‘slam-dunk’ case

Court sides with employee who was fired after threatening to destroy vital company data

In a recent decision, the Alberta Court of Queen’s Bench found that threats by an employee to destroy vital company data did not constitute just cause for dismissal without further investigation by the employer as to the seriousness of the threats.

In Mothersele v. Gulf Resources Ltd, Christopher Mothersele was a senior staff member with 19 years of service. His job was to provide technical leadership and expertise to Gulf. He was a highly skilled and well-paid employee who had access to information that was critical to the operations of Gulf.

Although management was generally satisfied with Mothersele’s work performance, they were concerned with his negative attitude towards the company.

Mothersele was highly critical of management and specifically with the deficiencies in their information management services and inefficiency in pursuing oil and gas prospects. He was a meticulous record keeper and stored much of the company’s data on his personal hard drive, not the company's computer network, due to his distrust for the integrity of the company's computer system.

This practice was accepted by his superiors. On two occasions he had written memos to the management expressing his displeasure over the operations of the information management department. The nature of these memos were considered offensive by management and on Nov. 3, 1999, Mothersele was called into a meeting with his direct superiors to discuss his negative attitude towards the company.

On Nov. 15, 1999, Mothersele met again with his superiors who told him his bonus was to be deferred pending improvement in the areas discussed at the prior meeting along with the need for increased documentation.

He was also told there was no room for advancement in his current technical position but that he could become a team leader. Mothersele was upset about his deferred raise and felt the position of team leader would be a demotion. He told management he would take January off to consider his options.

Mothersele was extremely angry after the meeting and he composed a memo in which he criticized management's' treatment of him in deferring his raise and attacked their suggestion that he provide his superiors with increased documentation.

This letter was not very different from his earlier memos except for the last sentence in which he threatened, “I’ll make sure I’ll purge my files and memory banks so that I leave no tracks.”

He gave this letter to one of his superiors on Dec. 17, 1999, at which time it was confirmed his salary increase deferral would stand. Upon reading the memo, his superior took the latter part of the memo to mean Mothersele was threatening to destroy his work product and files that belonged to Gulf.

Following the intervening weekend, the memo was discussed with other management personnel at a meeting on Monday morning and the president made the decision to terminate Mothersele’s employment. The feeling at the meeting was that this was a security issue and the threat could not be tolerated. On Dec. 20, 1999 management issued the directive that the information management department take steps to back up Mothersele’s computer and take steps to protect the information.

Mothersele reported for work Dec. 20 and 21, 1999, and had full access to his computer and company data. He was advised of his termination on the afternoon of Dec. 21.

The court found Gulf did not have just cause for dismissal. The court held the memo contained a conditional threat to destroy data and that while Mothersele was capable of carrying out the threat, he did not follow through with it. Moreover, the threat should have been assessed in the context of his prior history.

Mothersele was a trustworthy and competent employee with access to crucial company information. He had been known to be critical about the company’s data storage procedures but had neither threatened or harmed company property in the past in any way.

The court had difficulty with the company’s argument that they considered the threat to be serious when they did nothing to secure the computer or his access to data until three days after the threat had been made. The court found that Gulf’s actions were not that of a reasonable employer. On an objective standard, a reasonable employer would have taken immediate steps to protect the employer’s data (if it truly believed that its security was threatened) and knowing the employee’s nature and dedication to his work, a reasonable employer would not have terminated him without first confronting him about his intentions and state of mind.

The employer did not have just cause and the court held the employee was entitled to 15 months’ pay in lieu of notice less mitigation income earned during the reasonable notice period.

In assessing alleged misconduct, a court will examine the entire context of the employment relationship. A review will be made of the action complained of, the employees’ history and background, duties and responsibilities and the nature of the employer’s business. Where long-term employees are dismissed, a higher level of misconduct may be required before just cause for termination will be found.

Nevertheless, given that the employee in this case appeared to have threatened to maliciously destroy important company data, most employers would likely believe that just cause for termination existed.

This case is an important reminder to employers that even something as serious as threats by an employee must be considered in the larger context of the entire employment relationship.

For more information see:

•Mothersele v. Gulf Resources Ltd. (2003) CarswellAlta94 (Alberta Court of Queen’s Bench).

Heena R. Mistry is a lawyer with Jesin, Watson & McCreary in Toronto. She can be reached at hmistry@jwm-law.com.

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