As any follower of Canadian employment law already knows, there are many grey areas and very few “black-and-white” rules. One of the greyer areas is summary dismissal; evaluating when an employer has just cause to terminate the employment relationship is fraught with uncertainty. Contrary to popular belief, there are no absolute rules and there are no types of misconduct that will guarantee the existence of just cause for dismissal. Stealing from the employer, showing up drunk for work, threatening and even assaulting colleagues have all been considered by the courts and arbitrators on many occasions, and it is clear that each case will be assessed based upon its own particular set of circumstances, and that the contextual approach means that regardless of what the employee did, all relevant factors must be considered before a determination is made.
In a recent decision of the Manitoba Human Rights Board of Adjudication, the Board had to consider whether Linda Horrocks was properly dismissed. Ms. Horrocks was employed as a health care aid in a personal-care home, and was a member of the union. Part of her duties included assisting the residents, who are often vulnerable elderly individuals with both physical and mental challenges.
Early in 2011, concerns were raised with Ms. Horrocks regarding her poor attendance, and she was specifically asked whether alcohol abuse was a factor. She advised her employer that she had not been drinking and did not drink since she had been charged with driving under the influence and ordered by the court not to consume alcohol between May 2010 and May 2011. There were ongoing discussions regarding Ms. Horrocks’ attendance and other issues, and there was an agreement that she would abstain from drinking alcohol for a three month period. However, on June 3, 2011, one of Ms. Horrocks’ colleagues reported that she believed that Ms. Horrocks was under the influence of alcohol while at work.
The Regional Manager immediately met with Ms. Horrocks, determined that she was under the influence of alcohol, and sent her home. She was then suspended pending investigation. During a subsequent meeting, Ms. Horrocks indicated that she had an alcohol addiction, though her wording was somewhat unclear. She did indicate that she struggled with alcohol. The parties then entered into an agreement which required Ms. Horrocks to commit to various terms, including the fact that she would abstain from using alcohol both in and outside of the workplace. Apparently, the Union advised her not to sign the agreement, and their minutes of the meeting reference the fact that this might be discrimination toward a person with a disability.
Subsequently, evidence emerged that the complainant had been drinking. She was dismissed as a result, and a grievance was filed alleging that she had been discriminated against on the basis of a disability. After fairly extensive analysis of the law regarding discrimination, the duty to accommodate, and bona fide occupational requirements, it was found that the respondent did not make reasonable efforts to accommodate the complainant’s disability, and that she was therefore discriminated against. The dismissal was overturned, Ms. Horrocks was ordered to be reinstated, and the employer was also ordered to compensate her for 3.5 years of lost wages, as well as to pay general damages arising out of the breach of Ms. Horrocks’ human rights.
This case is a compelling example of how the law of dismissal can be quite complex, particularly where issues of disability and accommodation are thrown into the mix. While it might be tempting to characterize the situation simply, describing it as one where an employee in a position that involved providing care to extremely vulnerable individuals showed up drunk, the reality is that the courts will consider all relevant factors, including mitigating circumstances. Disability, including addiction, is a substantial factor that cannot be ignored.
In another interesting recent case, being Fortis Energy Inc. and International Brotherhood of Electrical Workers, Local 2 and 3, the grievor was dismissed for cause after allegedly stalking and threatening a customer during working hours using a company car. The evidence indicated that the grievor had been employed for 25 years with a clean disciplinary record. While at work, he received a text message from his wife in which he learned that she had been suspended from her job at a local hospital.
Not long after, the grievor drove to the hospital where his wife was employed, waited in the company vehicle until his wife’s supervisor came out, and then followed her while making it clear that he was watching her. The incident was reported to the police, and when the grievor’s employer attempted to investigate, the grievor provided an account of the incident that left out many important and incriminating details. This included some threatening text messages.
The arbitrator noted in his decision that in most cases, “an employer will take the path of corrective discipline prior to resorting to the ultimate sanction of a severance…”. However, the decision makes clear that some circumstances will warrant immediate dismissal, even if there has been no previous misconduct or disciplinary action. This was found to be one of those cases.
The arbitrator referenced “the stalking, threatening and deliberate intimidation of Ms. Argent on company time and in a company vehicle”, along with the grievor’s failure to respond honestly when confronted with the allegations against him. As I have written about on many occasions, this has become a critical factor in Canadian employment law. Employers have a duty to investigate allegations of misconduct, which includes providing the employee with an opportunity to respond to those allegations. The employee’s response will often be the deciding factor in the assessment of whether just cause for dismissal exists. If they are honest, apologetic and forthright, it is more likely, all else being equal, that they will be given another chance. However, if they compound their error by acting dishonestly and, effectively, destroying the relationship of trust that existed, then it is more likely, all else being equal, that a court or arbitrator will find that the employment relationship has been damaged beyond repair and that summary dismissal was appropriate.
The law continues to evolve with respect to summary dismissal, and more and more examples of scenarios where courts and arbitrators have assessed whether just cause for dismissal exists emerge each year. That is why my book, You’re Fired! Just Cause for Dismissal in Canada, is a loose-leaf publication which is updated twice each year. While it is always helpful to find cases that are similar to the circumstances you may be dealing with, it is crucial to remember that every case will be assessed based upon its own particular set of circumstances and that it is often quite difficult to predict, with certainty, how a particular case will be decided.
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