Bad behaviour, no witnesses (Toughest HR Question)

If an investigation points to a culprit by process of elimination, can we dismiss or discipline the employee?

Stuart Rudner
Question: Can there be just cause for dismissal — or at least significant discipline — if an employee isn’t caught red-handed and there are no witnesses but, through a process of elimination, she is the only possible culprit of serious misconduct such as vandalism or drug use at work?

Answer: Sometimes, the evidence found during an investigation will clearly show an individual was guilty of misconduct. Perhaps, as the reader suggests, the accused was caught “red-handed” and cannot deny what she has done. 

Even in such circumstances, just because an employee is guilty of misconduct does not mean she can be fired for just cause.
Once misconduct has been shown, the employer must undertake an assessment as to whether the employment relationship has been irreparably harmed, which will involve a contextual analysis of all relevant circumstances. 

In many cases, discipline will be warranted but summary dismissal will be disproportionately harsh, in light of all of the circumstances.

In most cases, the evidence may not meet the criminal standard of “beyond a reasonable doubt.” Nevertheless, as our judges do in civil courts everyday, the employer is entitled to reach a reasonable conclusion based on the evidence before it.

Every investigation should include interviewing of witnesses and the accused. In particular, the accused should be confronted with the allegations and given a reasonable opportunity to respond to them. 

If, at the end of the process, the employer feels it is likely the employee engaged in the suspected misconduct, then discipline will be appropriate. 

As set out above, it will then have to consider all of the relevant circumstances in order to determine whether summary dismissal can be justified. However, just because the misconduct cannot be proven “beyond a shadow of a doubt,” that does not mean the employer is precluded from taking action.

This issue often arises in circumstances where one employee accuses another of harassment. Many such cases come down to an issue of credibility. 

As I discussed in a recent seminar on how to deal with allegations of harassment (which is particularly timely in light of the Jian Ghomeshi situation), employers cannot simply conclude by saying there is contradictory evidence and they cannot reach a definitive conclusion. 

It is up to the employer to assess all of the evidence, including the story of the accused, and weigh it against the evidence of other witnesses (if any), as well as considering whether the accused’s explanation has an air of reality. 

In other words, the employer is entitled to assess credibility and reach a conclusion, even when the evidence is not definitive.

Stuart Rudner is a founding partner of Rudner MacDonald, a Toronto-based employment law firm. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business (see for more information or to order your copy). He can be reached at [email protected].

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