When faced with allegations of misconduct, employers should not only investigate but ensure the investigation is conducted properly
Imagine that an employee came to you and reported that a colleague had threatened her in the lunchroom. Would you immediately fire them for engaging in violent behaviour? Would you confront them first?
Many employers don’t want to deal with “procedural issues” and choose not to engage in a proper investigation. Instead, they react in haste to suspicion. Even if they “investigate”, many are reluctant to give the employee the chance to address the allegations, assuming that “they will only lie anyway”.
In fact, giving the employee an opportunity to respond can strengthen the employer's position to dismiss for cause, and failure to do so can result in significant liability.
Facts in Ontario case
In the 2021 Czerniawski v Corma (unreported decision), the Ontario Superior Court of Justice found that a 54-year-old assembler with 19 years of service was wrongfully dismissed when the employer failed to interview him prior to dismissing him for cause.
The employee had an "angry exchange" with his co-worker, who then complained to the supervisor. The supervisor told the human resources manager, who then spoke with the general manager. Eventually, he was told to go home since he had been involved in two incidents.
The employee inquired about the allegations, but the company failed to provide any details; the assembler was simply told that the company was going to investigate. When he refused to leave the premises, the company called the police. Eventually, he left without any incident.
The company advised him to stay home until he was informed otherwise. After four days without hearing anything from the employer, he attended the workplace and provided a letter noting that he did not threaten anyone and asking for an apology.
The company proceeded to dismiss him for cause, stating that he had engaged in threatening behaviour and insubordination (for refusal to leave the workplace and for returning to deliver his letter).
The employee filed ─ and won ─ a wrongful dismissal action against his employer.
Analysis by court
Here’s what the court found:
The employer failed to not only interview the employee about the allegations, but even inform him of what the allegations were. Rather, the employer’s investigation relied upon statements from other workers only.
- There was no objective evidence that the employee would use or threaten to use violence in the workplace, although the employer argued other workers were intimidated by him and feared he would engage in violence.
- Discipline would be warranted under the circumstances, but not summary dismissal.
The court stated:
“Had the plaintiff been allowed to respond to the allegations as he requested on March 7, 2019 or as part of the investigation, the employer’s decision may have been more proportional to the misconduct which occurred... He cooperated with the police when they arrived, left peaceably and there were no threats, intimidation or violence.
“... there were no prior incidents of violence. Any prior negative interactions with co-workers had not previously been brought to the plaintiff’s attention or been the subject of discipline... Progressive discipline for this incident such as a disciplinary letter or suspension would have sent the message that his behavior was unacceptable and given him a warning that a continuation could result in his dismissal.
“… the plaintiff’s misconduct was not so egregious that it can be said that he abandoned the intention to remain part of the employment relationship. The plaintiff should have been advised that his misconduct was serious and that a repetition would result in termination of this employment.
“Considering all the circumstances including the lack of an apology, the misconduct in this case does not justify dismissal without notice.”
The court awarded him 19 months of reasonable notice of termination, but refused to award aggravated and punitive damages.
Key takeaways for employers
When faced with allegations of misconduct, it is critical to not only investigate prior to disciplining or dismissing an employee for cause, but also to ensure that the investigation is conducted properly. Employers should inform the employee of the allegations brought against them and provide them with an opportunity to respond to such allegations.
The court in this case emphasized that if the employee was provided with the opportunity to respond to the allegations, then the employer’s response may have been more proportionate. While many employers are reluctant to speak directly with the accused employee, assuming that they will be dishonest, the reality is that if the employee is dishonest or unremorseful when confronted, that would strengthen the employer’s position on just cause for dismissal.
Employers should remember that dismissal for cause should be the last resort. While dismissal for cause may be warranted in certain cases, it has a high threshold. Employers should consider whether discipline may be more appropriate under the circumstances.