Determining what conduct amounts to just cause for dismissal is no easy task. In part this is due to just cause being inherently situation specific. When describing what may constitute just cause, employment lawyers often refer to extreme examples: think of situations where a public-facing employee makes repeated racial slurs to a customer or commits major fraud in the course of their duties. Typically, such facts will prove fertile ground for successful assertions of just cause for dismissal by an employer.
Even so, context is always key. As the following examples demonstrate, situations that on the surface may appear to support (or not support) an allegation of just cause for dismissal can often yield surprising results.
Not cause: punching a co-worker in the face (Phanlouvong v. Northfield Metal Products (1994) Ltd. et al)
Phanlouvong was a long service manufacturing employee. One morning before starting his shift, a co-worker walked past and accidentally hit Phanlouvong with this elbow. Phanlouvong responded by punching the co-worker in the face, causing the latter to stumble to the floor with a bloodied nose.
The employer fired Phanlouvong for cause. When the matter was taken to Court, however, just cause for dismissal was held to be an excessive response. As the Court pointed out: Phanlouvong's co-worker contributed to the conflict by not disengaging with Phanlouvong after being confronted; no consideration was given to Phanlouvong's long, unblemished, work history; and no exploration was made as to whether a lesser sanction pursuant to the employer's progressive disciplinary policy would have been sufficient.
Cause: single unauthorized access of an employee parking list (Steel v. Coast Capital Savings Credit Union)
Steel worked as an IT Helpdesk Analyst for a credit union. Her employer had established a system of private, confidential computer folders for each of its employees. Prior to being able to access the contents of these private folders, Helpdesk Analysts were required to obtain the permission of the folder's owner. The credit union also established detailed policies with respect to protecting confidential documents.
The allocation of limited parking spaces was a hot topic in the workplace. To that end, Steel improperly accessed a parking priority list in a manager's private folder to check her own ranking. She was only caught when the manager tried to access the same file simultaneously and received a notice that his access was blocked due to another user having the file open. Steel was confronted about the situation and then fired for cause.
At trial and on appeal, the employer was determined to have cause for termination. Both courts emphasised that Steel was in a position of trust, trained on the importance of privacy and was provided policies that warned of the possible consequences of breaching privacy. Even Steel's 21 years of employment were not enough to save her. That said, it is worth noting that on appeal, one of the three Court of Appeal judges dissented, holding that Steel ought not to have been fired for cause. This is an indication that the case was by no means a sure thing for the employer.
Not cause: drunk driving in an employer-issued vehicle (Klonteig v West Kelowna (District))
Klonteig was an Assistant Fire Chief in West Kelowna. One night while off-duty (but driving a West Kelowna issued truck) Klonteig was pulled over and twice failed a breathalyser test. He received a 90-day administrative suspension and the employer's truck was towed and impounded. Klonteig's employer eventually fired him for cause.
At trial, it was determined there was no just cause for dismissal. In reviewing the facts of the case, the Court found that Klonteig was forthright with his employer about the situation and remorseful. Klonteig gave evidence that he had not thought he had consumed enough alcohol that night to be impaired but readily admitted he had been wrong in his assessment.
Beyond this, the Court noted that Klonteig's off-duty conduct did not involve a marked West Kelowna vehicle, the facts were not known to the public at the time of discharge and Klonteig was not the public face of the Fire Service. Klonteig's situation was also said to be "not of the same moral reprehensibility" as other cases of off-duty conduct cited by the Court (though this has been a significant point of public criticism of the decision). Finally, it was noted that there was no evidence that Klonteig had irreparably lost the trust of his subordinates to such a degree that a lesser sanction would not have been effective in the circumstances.
Lessons for employers
For most employers, there may come a time when it is both appropriate and necessary to fire a worker for cause. Before pulling the trigger, employers are best advised to do their due diligence. It can be well worth taking a few days to gather all the facts and fully assess the situation (both in terms of legal and operational considerations). Employers have a ready tool, in the form of a paid administrative suspension, to preserve their rights and operational integrity when studying whether cause is appropriate. Don't let context come back to bite your organization.
This article was originally published on October 15, 2018 on First Reference Talks.
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
