Ultimately, a court or arbitrator is trying to determine whether the relationship has been irreparably harmed or whether the employee should be given another opportunity
As I often say, when assessing whether just cause for dismissal exists, you can’t only look at the misconduct in question. Our courts have made it clear that a contextual approach is required which considers all relevant factors.
Those factors can include the employee’s length of service, their disciplinary record, the nature of their role, and how they respond when confronted. In many cases, that last factor can be the critical factor in determining whether the employee should be given another chance.
It must be remembered that when an employer says it has just cause for dismissal, it is alleging that the trust required to maintain an employment relationship has been destroyed and the relationship cannot continue. If an employee compounds the situation by acting dishonestly and refusing to take responsibility for their actions, that will bolster the employer’s argument that they should not be allowed to continue in their role.
The recent decision in Insurance Corporation of British Columbia v. Moveup (Canadian Office and Professional Employees’ Union Local 378) is a great example of such a case: the employee engaged in blatantly dishonest behaviour and then, rather than demonstrating remorse and offering some assurance that it would not happen again, she doubled down, refusing to admit any wrongdoing and perpetuating her dishonesty.
The employee was a part-time customer service adjuster who worked on Saturdays and Sundays. Her job was remote, and she usually worked from home. She asked to take her anniversary weekend off so that she and her husband could go to a resort but her request was denied; after resubmitting her request, she received approval to have the Sunday off.
However, she and her husband went to the resort anyway and she called in sick early on the Saturday morning. The company’s HR system flagged her absence as suspicious due to the fact that she had previously requested that day off as a vacation day.
A review of the employee’s social media uncovered an Instagram post of the employee celebrating at the resort on that weekend (another reason to use social media in HR!). The employer then confronted the employee, who insisted the trip was a “last minute” decision and that she intended to work from her hotel room, which would be no different than working from home, until she became ill.
The employer did not believe the employee and dismissed her for cause, alleging that her abuse of the sick leave and her dishonesty had irreparably damaged the trust required to continue the employment relationship.
The employee grieved the dismissal, and the arbitrator approached the case from the perspective that the grievor’s credibility was the critical factor; if she was legitimately ill on the Saturday, the dismissal would not be justified.
With respect to credibility, the arbitrator noted that a witness’ testimony is first to be considered on a “stand alone” basis to assess whether it is internally consistent and inherently believable. If so, it should then be considered in the context of other evidence to determine “which version of events is the most consistent with the ‘preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.’”
Ultimately, arbitrator Arne Peltz found, based on “common sense and the vagaries of human experience,” that the grievor’s story was suspicious and more likely to be a “manufactured account.”
Having concluded that the grievor was not ill on the Saturday, the arbitrator found that she had engaged in sick leave fraud and then “compounded the offence when she failed to be forthright during the investigation and repeated an untruthful account of her absence from work.” The dismissal was upheld.
There are no absolute rules as to what will constitute just cause for dismissal. That is the one absolute rule I mention in my text, You’re Fired! Just Cause for Dismissal in Canada.
Ultimately, a court or arbitrator is trying to determine whether the relationship has been irreparably harmed or whether the employee should be given another opportunity. In this case it was the grievor’s dishonesty that destroyed the necessary trust and warranted dismissal.
While many employers express reluctance when we recommend confronting an employee suspected of misconduct, it is almost always beneficial to do so. You may learn of mitigating or extenuating factors, which you will be better off knowing about and considering before dismissal. More likely, the employee will give you an even stronger case for dismissal, as in this case.