Diligence necessary when dismissing an employee – even when emotions run high
By Stuart Rudner
I have written many times about the law of summary dismissal. We always caution employers not to react too hastily, and to remember that whether just cause existed will be assessed using a contextual approach which will consider not only the conduct in question, but all relevant factors. In most cases, some degree of progressive discipline, which will include clear warnings that the misconduct is unacceptable and that further misconduct will lead to discipline up to and including termination, will be required.
Ultimately, courts, arbitrators and adjudicators are trying to determine whether the employment relationship has been damaged beyond repair. And although the threshold for summary dismissal is high, we still see cases every year in which courts or arbitrators find that just cause for dismissal existed. As I often say, “just cause is not a lost cause”. A good example is the recent decision in Sinclair and Shaw Cablesystems Ltd. (Unjust Dismissal), Re.
In that case, the employer became concerned about apparent dishonesty on the employee's timesheets, which amounted to time theft, after discovering similar misconduct on the part of a colleague. Shaw found a discrepancy of 105.5 hours between the amount of time Mr. Sinclair claimed to have worked and the time indicated by the GPS tracking system on his vehicle. Simply put, the employee had claimed to have worked hours which objective evidence demonstrated that he had not. This is not an unusual situation, but one that causes emotions to rise, particularly for the employer dealing with an employee that they trusted and has now shown him or herself to be dishonest and fraudulently claiming to work when they are not. In most cases, employers in such situations want to immediately dismiss the employee in question.
While caution is always warranted, the Shaw decision does provide some reassurance to employers that the courts will take a common sense approach to such situations and will not necessarily be overly protective of the dishonest employee. Of course, as we always say, every case must be assessed based upon his own particular circumstances. However, in this case, the adjudicator found that just cause for dismissal existed as a result of the dishonesty in completing timesheets.
The adjudicator found that the dishonesty had destroyed the trust that was necessary in order to have a viable employment relationship, and that the relationship had therefore been irreparably harmed. In so doing, the adjudicator took note of past performance issues, including warnings of discipline, up to and including dismissal, if there was no improvement.
As I have also said on many occasions, an employee’s response when confronted with allegations of misconduct is a critical factor in assessing the viability of the relationship going forward. In this case, Mr. Sinclair never acknowledged any wrongdoing or offered any explanation for the discrepancies on multiple timesheets. As a result, the decision to dismiss the employee for cause was upheld.
The challenge for employers, employees, and employment lawyers is that there are no hard and fast rules regarding what will constitute just cause for dismissal, and these cases are difficult to predict with certainty. Frankly, if this case had proceeded before a different judge, it is quite possible that the result would have been a finding that the misconduct warranted discipline but that summary dismissal was too harsh a penalty.
Employment law has often been described as a pendulum, which swings back and forth over time, attempting to balance the rights of employers and employees. This case, as well as the recent Ontario Court of Appeal decision addressing the enforceability of the termination clause in an employment contract, are both examples of the swing towards the interest of the employer. However, it is far too early to know if it is indicative of a larger trend, or simply two unrelated decisions that were released within a short span of time.
Given the complexity and unpredictability of the law of summary dismissal, employers should always avoid rushing to judgment, and should consult with an employment lawyer before making any decisions regarding discipline or dismissal. Employees should be mindful of the fact that misconduct does not automatically mean that summary dismissal is warranted. If they find themselves on the wrong end of a summary dismissal, they should consult with an employment lawyer in order to ensure that the dismissal was justified at law. Otherwise, they may be entitled to substantial compensation, which is the reason why employers should proceed with caution.