Just cause ‘exaggerated, incorrect and unsubstantiated’
A legal aid lawyer in Newfoundland and Labrador knew his rights when he was suspended indefinitely pending an investigation into alleged negligence, incompetence and dishonesty, and eventually terminated for cause. He claimed his employer constructively dismissed him and sued for wrongful termination. The court agreed.
Lawyers need oversight too
In 2003, Thomas Turner had practised law for the Legal Aid Commission for 22 years. He was 52 years old. Lawyers at the commission generally managed their files and records as they chose, although in the late 1990s, the commission introduced a computer application called LAMIS to assist with file management. At the Steers Cove office, where Turner practised, few lawyers used LAMIS consistently, and the employer made no effort to make them use it. Indeed, the court found this appeared to be the employer’s general management style:
There were few, if any, set out and consistently applied policies, requirements or procedures that were enforced by management at that time related to the performance of staff lawyers.”
In late 2002, due to excessive workloads, limited resources and a lack of support from management, the lawyers at Steers Cove took a stand. They refused to take any more files until they had reduced their workloads to manageable levels. The commission responded with an investigation into the lawyers’ claims of overwork. Turner was among the first to have his files reviewed in March 2003.
It ‘did not go well for him’
The review was officially intended to:
- Provide some objective basis upon which to respond to the lawyers’ concerns, especially those with respect to workload
- Establish guidelines for the manner in which practice reviews will be carried out in the future and to help determine what is a reasonable workload
- Assist us in the management of Legal Aid
However, the commission also told Turner that he could have counsel present at his review because it might result in discipline. Later however, management told staff that the practice review was “not a performance review.: It had “one goal and that is to assist in developing some guidelines with regards to the number of files a staff solicitor should be able to handle.”
The employer found numerous deficiencies in Turner’s files and immediately placed him on an indefinite suspension with pay. Two weeks later, after further investigation, the commission terminated Turner for cause. The letter stated:
Your position with the Newfoundland and Labrador Legal Aid Commission is hereby terminated for cause forthwith.
Your practice is still being reviewed, but to date we have determined the following causes for your termination: Negligence. Incompetence.
Misleading your employer and your clients. Providing false information to your employer and your clients. Providing erroneous advice to clients or no advice at all. Acting against or without client’s instructions. Failing to complete work based on certificates issued to you. Failing to contact clients in a timely manner, if at all.
If you are not already aware, a complaint has been made to the Law Society against you by the Newfoundland and Labrador Legal Aid Commission.
Since you are being terminated for cause you will not be paid any severance pay. As for your accumulated vacation pay, we do not intend to pay this.
We are not satisfied you have accumulated the paid leave you say you have accumulated. The Commission is facing numerous potential negligent suits which may very well cost substantial amounts of money. A considerable amount of time has been spent rectifying your practice by staff solicitors and the Commission and you are responsible for these costs.
In the event that you take action against the Commission we will be counter-claiming for past wages paid since it is our opinion that since at least 1992 you have not done sufficient work or work of a sufficient quality to warrant the salary you have been paid.
‘Exaggerated, incorrect and unsubstantiated’
The judge was not impressed. The employer had failed to conduct an objective investigation into Turner’s files and did not give him sufficient opportunity to respond before taking the ultimate step of terminating him.
While [Turner’s] practice cannot be characterized as being perfect in my opinion… the allegations and the manner they were made in the dismissal letter for an employee who had worked for some 22 years with the [employer] were inappropriate in the circumstances to say the least. The denial of vacation pay and the threat of litigation in response to any claim being made by [Turner] are particularly egregious.”
In addition, the problems with Turner’s practice were mainly the result of the employer’s poor management practices. Management offered little direction to lawyers as to how to manage their clients and their files. Where they existed, policies were inconsistently applied, if at all. Lawyers were overworked and denied support. In brief, “the system was breaking down” and the work environment was “chaotic.”
As a result, the court found the employer did not have sufficient cause to terminate Turner. The employer owed him 22 months’ pay in lieu of notice totalling $166,873, plus compensation for other employment-related losses like pension, salary increases and vacation pay, and $30,000 in moral damages for the bad faith treatment Turner received from his employer and the mental distress he suffered as a result.
The judge noted:
Even if incompetence is found, such might be a cause for dismissal but it has been held that any dismissal without proof of gross incompetence must be with notice…More often than not, gross incompetence is established by an accumulation of events throughout the employment of the Plaintiff.”
“In general, an employee’s misconduct must be of such a magnitude as to overshadow the years, loyalty and efforts devoted by the employee to the employer.”
The judge went on to quote Employment Law in Canada, 2nd ed.:
Work rules alleged to have been violated must display the following characteristics in order to ground “cause.”
- The rules must be made known to the employee.
- The rules must have been consistently enforced.
- The order in question must have been clearly communicated to the employee.
- The order must be authorized in the sense of being within the scope of the worker’s duties under the employment contract.
- The employee must have been made aware unequivocally that dismissal is the penalty for disobedience.
- The rules must be lawful and “reasonable” in content.
- The employee must not have a “reasonable excuse” for disobedience.
- Breach of the rules must be sufficiently serious to justify dismissal according to the common law standard of “cause.”
Management-despite being composed of well trained lawyers-failed to fulfil several of these conditions.
Employers can take a number of good lessons from this case.
First, the rules (outlined above) are clear with respect to termination for cause, and the threshold for summary dismissal is high and difficult to reach.
In addition, policies and procedures are crucial to successful management, but they must be applied-and applied consistently-for them to have any force.
Read the full case of Turner v. Newfoundland and Labrador Legal Aid Commission, 2014 on CanLII.org.
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