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What’s cause got to do with it?

law scaleAt times, employers despair at the perceived narrowing of the requirements of just cause for termination. With many adjudicators focused on progressive discipline, summarily dismissing an employee, even for serious misconduct, requires caution and often a well-researched legal opinion.

However, there is some conduct that is simply beyond the pale. Two recent decisions from the Courts of Appeal in British Columbia and Alberta provide reassurance that for outrageous conduct, employers can still dismiss employees before they do more harm.

1) No, you can’t buy drugs from your subordinate

In British Columbia, the case of Van den Boogaard v Vancouver Pile Driving concerned a project manager at a marine general contractor. The employee was in charge of the safety of a job site in a safety-sensitive industry. His employment was terminated without cause.

When he returned his phone to the employer, text messages were discovered indicating that the employee had repeatedly purchased illicit drugs from a subordinate while he was still employed. The company claimed after-acquired cause for termination.

The employee claimed that if the employer had discovered his activities while he was employed he would not have been dismissed. In addition, the employee claimed there was no harm as a result of his activities, and that there was no subjective evidence that the employer was concerned about that type of misconduct.

The Court rejected all of the employee’s arguments, and held that it was a matter of common sense that the misconduct was something a reasonable employer could not be expected to overlook.

The B.C. Court of Appeal found that the trial judge had properly contextualized the misconduct in the setting of a safety-sensitive workplace.  Notably, the Court of Appeal confirmed that the employer did not have to show that the misconduct resulted in harm, or even that it had a specific concern about the behaviour.

2) One strike and you’re out!

Meanwhile, the Alberta Court of Appeal was deciding the case of Telus Communications v Telecommunications Workers Union. In that case, the employee had requested time off for a baseball tournament. After that request had been denied, the employee suspiciously called in immediately before his shift that day, complaining of gastric distress and claiming he was unable to work.

On a hunch, the employee’s supervisor went to the baseball diamond where the tournament was taking place and witnessed the employee participating in the tournament. In a later interview, the employee claimed at first he was simply watching the game. Later, he changed his story and claimed to be pitching, which, the employee alleged, involved simply “standing there.” He admitted lying about playing baseball but maintained he was sick. The employee was dismissed.

The employee grieved his termination. Shockingly, the arbitrator upheld the employee’s grievance and he was reinstated on the basis that the employer “over-reacted” to the employee’s dishonesty.

The Court of Queen’s Bench struck down the arbitrator’s decision as unreasonable.

The Court of Appeal agreed.

The arbitrator’s approach effectively required that the employer “prove” the employee was not sick.  The Court found that this was an unreasonable burden to put on the employer.

In addition, this was a rare case where an arbitrator’s finding of facts was overturned. Given that the only evidence supporting the employee was his own testimony and there was a preponderance of evidence that the employee was not sick, it was unreasonable to suggest that the employee’s story was true.

The Court found that termination was the only possible option for an employee who had called in sick to play baseball and repeatedly lied about doing so after the fact. He had totally destroyed the trust in the relationship.

Conclusion

Judicial decisions on cause are always of value to employers in shaping disciplinary policy. However, each of these two cases, with arguably very good facts for the employer, slugged through various levels of appeal before ultimately resolving at the highest level of appellate court in each respective province. Before asserting cause for summary dismissal, prudent employers should always seek legal advice, regardless how strong the cause.

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Stringer LLP

Employment and Labour lawyers at Stringer LLP
Stringer LLP is a leader in Canadian HR law. For over 45 years, they have taken a client-centered approach to responsive service, representing employers with labour relations and employment problems. Their firm’s practice covers a broad spectrum of HR law, including employment law, occupational health & safety, labour relations and arbitration, human rights, workers’ compensation and pay equity, as well as issues under the Accessibility for Ontarians with Disabilities Act. They also provide training, seminars and conferences on the above topics. Read more
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