When suspicion becomes fact

Dealing with 1 proven incident of misconduct and multiple incidents with circumstantial evidence

By Jeffrey R. Smith

Despite how it may seem, employers in Canada are free to dismiss an employee anytime they want for any reason that isn’t discriminatory.

However, the catch is they must provide reasonable notice or pay in lieu of notice, commensurate with the employee’s length of service, position, employment record and other factors. Employment standards legislation dictates minimum notice periods based on length of service, and common law notice can add a lot more on to that.

If an employer dismisses an employee for cause, then no notice is required — as long as the employer can prove just cause. And the bar is set fairly high for just cause, so it may not be worth the trouble. But if an employer is sure, then just cause is worthwhile asserting.

But what constitutes just cause for dismissal? As with many things — especially in employment law — every case should be examined on its own facts. If employee misconduct is the reason, then the employer better have a strong case, not just circumstantial evidence.

A parking lot company that operated a parking lot at a train station in Ottawa noticed a number of instances in which parking tickets issued by its automated machines were being cancelled, sometimes in conjunction with a car being let out of the gate. Its parking lots usually had one attendant on duty who was only there to assist customers having trouble operating its machines, not to actually perform any transactions involving payment for parking spaces. There were 22 such incidents over a three-month period, and an investigation revealed one particular employee was on duty for all of the incidents.

The company’s suspicions were raised but it didn’t have definite proof that the employee was responsible, so it just kept an eye on things at the Ottawa lot. One day, a manager contacted the main office to file a report from a customer who said the employee under scrutiny had asked her for $40 in cash when she was having trouble paying the machine with her credit card. When the customer gave the employee the cash, he cancelled her ticket — with its $70 parking charge — and raised the gate, allowing her to leave. She felt guilty so she contacted the company.

The company found this incident followed the same pattern as the other incidents, so it dismissed the employee for dishonesty in cancelling $1,000 in tickets over the three-month period. The employee denied he was responsible for the other incidents and the union said there was no proof the employee was involved in the other incidents, so dismissal was too harsh for the one incident of misconduct.

An arbitrator found the last incident was worthy of discipline and, since it followed a pattern of incidents during which the employee was present, it was likely he was responsible for the other acts of misconduct as well – even though the evidence was circumstantial. In addition, the employee didn’t follow policy and file a report of the cancelled ticket, further lending credence to the employer’s belief the employee was dishonest. The dismissal was upheld: see Allpark/Metropolitan Parking Inc. and Hospitality and Service Trades Union, Local 261 (Haylu), Re, 2015 CarswellOnt 6315 (Ont. Arb.).

The employer was wise in waiting until it had something concrete to prove the employee’s dishonesty and providing just cause for dismissal. Though it had a significant amount of evidence of the employee’s involvement in the cancelling parking tickets, there wasn’t anything definite. Had it fired the employee at that point, it’s likely the grievance of the dismissal would have been successful. However, by waiting until it had proof of misconduct, it became clear the employee was likely responsible for the previous incidents as well and underlined the fact the employee was dishonest.

But there can still be a fine line for just cause, depending on how serious the final incident of misconduct is. If all evidence up to that point is circumstantial, should the culminating incident really be treated as culminating? When an employee is disciplined for misconduct and that misconduct is similar to previous instances for which the employee was suspected but not proven to be responsible for, should it be considered multiple instances of misconduct?

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