This decision is a good example of how not to conduct an investigation when it comes to dismissals
By Stuart Rudner and Nadia Zaman
Recently, the Ontario Superior Court allowed a summary judgment motion by a plaintiff alleging wrongful dismissal; the court found that the employer’s allegations of cause lacked any reasonable evidentiary basis.
In Edmond v Algonquin College, Mary Catherine Edmond had worked for Algonquin College for almost nine years as its manager of cooperative education. In May 2014, the college authorized the plaintiff to hire a full-time staff member into her department. The job posting required the successful candidate to have “a minimum three-year diploma/degree in marketing and public relations,” although an earlier draft of the posting required either academic qualification or equivalent experience.
Edmond chaired the selection committee and signed a confidentiality agreement which prohibited the disclosure of personal and confidential information obtained during the process.
After the committee reviewed 20 applications and interviewed three candidates, Edmond forwarded the majority decision to senior management suggesting that Mr. Noah be hired. The college rejected this suggestion since he did not have the academic qualifications required for the position. Edmond then submitted a summary outlining the reasons why Mr. Noah should be hired. The college refused.
Noah was already working under Edmond, and was very upset by not being granted the position. Edmond asked a union steward at the college to meet with Noah to discuss his options, and forwarded several documents from the selection process to the steward upon request.
The union filed a grievance on behalf of Noah for the college’s failure to award him the position.
In February 2015, a labour relations specialist at the college interviewed both Edmond and Noah. Edmond was immediately suspended with pay while the matter was investigated. Less than a week later, the labour relations specialist submitted a report recommending Edmond’ dismissal for cause, alleging breach of trust, breach of confidentiality and conflict of interest.
A week later, the college accepted this recommendation and dismissed Edmond’s employment for cause. The termination letter stated the following reasons for the college’s decision to dismiss for cause:
- failure to disclose a personal relationship with Noah to the selection committee (meaning the labour relations specialist stated that Edmond and Noah had a “family connection” and she was prohibited from participating in the hiring selection of a family member)
- breach of her duty of loyalty and insubordination in seeking the cooperation of the union to have Noah hired
- disclosure of confidential information to the union to assist it in its grievance against the college on behalf of Noah
- failure to be forthright about her personal relationship with Noah, when interviewed
- breach of the college’s confidentiality agreement.
Edmond brought a claim for wrongful dismissal, seeking 12 months’ notice along with damages for intrusion upon seclusion and breach of good faith and fair dealing.
The court held that the college had failed to establish just cause for dismissal, finding that the college’s allegations lacked any reasonable evidentiary basis and the recommendation to dismiss Edmond for cause was based on inaccurate and misleading statements. For instance, the allegations that she had a personal relationship with Noah and that she failed to disclose such relationship to the committee were based solely on an email exchange in which Edmond and Noah wished each other a Merry Christmas.
Although the court found that Edmond acted inappropriately in providing confidential documents about the selection process to the union steward, dismissal for cause was held to be a disproportionate response to such misconduct.
Importantly, the court held that Edmond was an “almost nine-year, very dedicated and satisfactory mid-level manager who was almost 60 years of age with no prior discipline”, and that the college could have imposed less severe disciplinary measures such as a reprimand, suspension with pay, or dismissal without cause.
The court awarded Edmond 12 months of notice and her costs of the motion; the remaining issues (meaning intrusion upon seclusion and breach of fair dealing) were to be dealt with through a summary trial.
This decision is a good example of how not to conduct an investigation and a reminder of the importance of a fair and objective investigation before making the decision to impose the “capital punishment of employment law”.
In particular, several statements by the labour relations specialist in the investigation report were inaccurate or misleading, which she knew or should have known to be the case, and contained “unsupported conjecture or speculation”.
Although she noted the following as mitigating factors: Edmond’s employment since 2006, her satisfactory performance over that nine-year period, the absence of any prior discipline and the fact that the plaintiff would be 60 years old in 2015, she failed to consider “any of the lesser forms of discipline or why they would not be appropriate in response to this first instance requiring discipline of this soon to be 60 year old employee with [nine] years of satisfactory performance.”
The court found that “the central problem” for the college was the proportionality of the discipline imposed. There was no evidence that the college considered any of the alternative forms of discipline to be inappropriate; instead, it accepted the investigation report which contained misstatements of relevant facts and the conclusion that dismissal for cause was the only appropriate and proportionate response.
While just cause is not a lost cause and it will be appropriate in certain cases, employers must be careful in arriving at the decision to dismiss for cause. The threshold is high and employers should not set out to prove a desired outcome.
Nadia Zaman is an associate at Rudner Law in Toronto.