What conduct deserves dismissal?

There’s no easy answer, but a look at recent cases can help

Stuart Rudner
What is just cause for dismissal? It’s a question that plagues HR and, unfortunately, there is no simple answer beyond “it depends.” Just cause in one case might turn out to be wrongful dismissal in another.

But it’s worth keeping an eye on what courts and arbitrators are doing to assess the factual circumstances employers — and employment lawyers — come across. Although the selections below may not be as humorous as some from previous round-ups, they are instructive.

You can abuse patients…

Ollie Ewert was a registered psychiatric nurse in a personal care home, tending to seniors. Various witnesses accused the nurse of pushing pills into the mouths of patients in a rough manner, pinching a patient’s nose in order to put a teaspoon in her mouth when she refused to eat, pushing a resident’s wheelchair in an abrupt fashion to scare her and instructing a health-care aide to withhold incontinence pills from a patient.

The court concluded the standard of care for vulnerable persons is very high and, correspondingly, the threshold for what constitutes abuse is very low. However, the court found Ewert’s conduct was not so egregious as to justify summary dismissal.

Other than some occasional lapses, she was found to have fulfilled her duties in a satisfactory fashion. While she was sometimes disrespectful and insensitive to residents, none of them suffered any serious injury from her conduct. Under the circumstances, the court found the more appropriate course of action would have been a warning. The reasonable notice period was determined to be four months. See Ewert v. West Park Manor Personal Care Home Inc., 2007 CarswellMan 420 (Man. Q.B.).

…but not your boss

The employee, David Rysstad, was a mechanical design technician who worked in a small business selling hydroelectric turbines. The environment was a rough one, described as “masculine,” in which profanity was common. The work environment was also fraught with tension, as many of the employees were upset with the owner due to a disagreement over wages. Rysstad had a particularly bad relationship with the employer due to the wage disagreement.

In May 2006, the owner confronted Rysstad about eating his lunch in the computer room instead of the lunch room. Unbeknownst to Rysstad, the owner recorded the conversation with a concealed tape recorder. The taped evidence showed Rysstad was the conversational aggressor and he had been verbally abusive toward the owner. Although the court approached the evidence with caution due to Rysstad’s lack of knowledge of the concealed recorder, the court still found the behaviour inexcusable, saying it constituted a fundamental breach of the employment relationship.

The language Rysstad used indicated he considered the owner to be incompetent. Based on his demeanour and attitude toward the owner, the court concluded there was just cause for dismissal. See Rysstad v. Dependable Turbines Ltd., 2007 CarswellBC 689 (B.C. S.C.).

Bus drivers shouldn’t give gifts to school girls

A 54-year-old bus driver, recently divorced and suffering from depression, was so moved by a gift from a regular passenger, a 13-year-old girl, that he decided to reciprocate with a package containing candy, a flower and a teddy bear. When the girl was not on the bus the following day, he gave the package to another student and asked that it be delivered to the girl. He also included a card with his name and telephone number. He mentioned the girl should only call him if her father allowed.

The gift eventually came into the possession of the school’s dean of students, who thought it was inappropriate. When the girl learned of the gift, she became scared to ride the bus. The police investigated, but no charges were laid. When questioned about the incident, the bus driver said it was a misunderstanding.

The arbitrator found the bus driver’s conduct was inappropriate and warranted discipline, but firing was too severe. The driver had previously received a one-day suspension for asking to take a picture of another girl on his route. However, the arbitrator found the leap from a one-day suspension to termination was too great.

In this case, there was no evidence the bus driver was dangerous; at most, he appeared to be guilty of exercising bad judgment. However, the arbitrator imposed a condition upon the reinstatement: The employer was allowed to compel the driver to submit to a psychiatric examination. See A.T.U., Local 508 v. Halifax (Regional Municipality), 2007 CarswellNS 134 (N.S. Arb. Bd.).

Refusing to take blame is blameworthy conduct

Martha McGachie was an employment counsellor at an immigration and refugee centre in Victoria. Her job performance was less than satisfactory. Her probationary period had been extended on more than one occasion, she had been cited for a series of mistakes and her supervisor warned her that any further serious mistakes would result in her termination.

McGachie made another serious mistake when she sent an unapproved letter to her employer’s funding agency that ultimately resulted in the centre losing part of its funding. The employer asked McGachie to acknowledge her mistake in writing. She provided a written response, but refused to acknowledge any wrongdoing on her part. She was fired and she filed suit for wrongful dismissal.

The court held that while the employee’s actions, or errors, prejudiced the employer, they did not warrant dismissal. Instead, a lesser form of discipline was appropriate. However, the court found the employer’s request that McGachie acknowledge her mistake in writing amounted to appropriate discipline and her failure to comply was insubordination justifying dismissal.

The dismissal was upheld based upon this refusal and the court held that wilful refusal to carry out a lawful direction from one’s superiors can be grounds for summary dismissal. See McGachie v. Victoria Immigrant & Refugee Centre Society, 2007 CarswellBC 184 (B.C. S.C.).

Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672.

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