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A couple years ago, Torontonians and many Canadians outside the Greater Toronto Area (GTA) met George Robitaille, otherwise known as “the snoozing TTC collector” or something along those lines.  The incident, in which a transit rider observed a collector fast asleep in his booth for several minutes and ultimately took pictures of him, made headlines.  The public condemnation was swift, with calls for Mr. Robitaille to be fired (or worse). When he was not dismissed, many people expressed their bewilderment over what one has to do in order to be fired. The reality, however, is that Canadian employment laws are not so straightforward. Summary dismissal requires a broader consideration of the issues and, in most cases, an appropriate investigation.
 
Employees can be dismissed for cause when their misconduct or performance is so egregious that the employment relationship has been irreparably harmed.  In such circumstances, our courts and arbitrators will find that just cause for dismissal existed and uphold a termination on that basis. The difficulty is determining when that line has been crossed. In any situation where an employee engages in misconduct, the employer must take a contextual approach in assessing whether just cause for dismissal exists. 

This approach involves considering not only the misconduct in question, but the entirety of the employment relationship.  It would include the length of the employment relationship, the nature of the employee’s position and duties, any prior discipline, and any other contextual factors relating either to the relationship or to the misconduct in question. The misconduct cannot be considered in isolation. It is only once all of the relevant factors have been considered that an employer, or a court, can determine whether the relationship has been irreparably harmed by the misconduct.

When faced with apparent misconduct on the part of an employee, it is incumbent upon an employer to conduct an appropriate investigation.  Doing so is important for a number of reasons.  In some cases, a proper investigation will reveal that the employer’s initial reaction may have been unfounded, and that there was a reasonable explanation for the employee’s apparent misconduct.  This occurred to a client of mine a few years ago, when they believed that one of their senior managers had engaged in a fairly blatant theft of company property.  An investigation that involved reviewing videotape and interviewing witnesses revealed that the manager had been acting in the best interest of the company, moving the property so that it would not susceptible to theft at a time when it would not be monitored.  Had the employer reacted prior to investigating, as they were initially inclined to do, they would not only have opened themselves up to a significant wrongful dismissal claim, but they would also have lost a valued member of their leadership team for no good reason.
 
In other circumstances, the employer may confirm that there was misconduct, but the investigation will provide the employee with an opportunity to explain their conduct and may reveal mitigating circumstances that would preclude dismissal.  Learning of such information prior to dismissal will save the employer from a potentially costly wrongful dismissal claim.
 
Conversely, an investigation may provide the employer with additional evidence upon which to base its conclusion that it does have grounds for summary dismissal.  The employee may essentially dig themselves deeper into the hole that they have created by engaging in dishonest and deceitful conduct which will further erode any remaining trust and demonstrate that the relationship has been irreparably harmed.
 
In many circumstances, it will be appropriate for the employer to retain a third party to conduct an investigation, particularly where witnesses, including the employee in question, must be interviewed.  Recently, a client that I work with regularly had a situation where they suspected inappropriate conduct on the part of one of their staff.  We arranged to retain Corporate Investigation Services, and their investigator did a tremendous job interviewing the primary witness and the suspect employee.  They did so in a manner that was far more effective than what could have been done internally.  Ultimately, it provided compelling evidence to support summary dismissal, and the company proceeded accordingly.  The investigation was conducted fairly, appropriately, and in a detailed manner.  The transcripts of the examination will, if necessary, serve as evidence if litigation is commenced.
 
In assessing whether the employment relationship has been irreparably harmed, courts and arbitrators will often consider the employee’s behaviour during the course of the investigation.  In many cases, this can be the difference between a finding of just cause and a finding that dismissal without notice was excessive.  An unapologetic, dishonest employee is less likely to be given a second chance than those who admit to their wrongdoing and offer suitable apologies and assurances that it will not happen again.

Because a contextual approach is required, the misconduct in question will not be the only factor in determining whether summary dismissal is appropriate.  For that reason, it is entirely possible that two employees will be guilty of the exact same misconduct, but the penalties will differ in each case.  For example, a long-term employee with a clean disciplinary record will typically be given more leeway than a recent hire that has already been in trouble repeatedly.
 
Employers should never leap to judgment upon learning of misconduct on the part of an employee.  No matter how egregious the conduct appears to be, it is crucial that employers engage in an appropriate investigation, consider all of the contextual factors, and then decide whether summary dismissal is warranted. I regularly monitor just cause cases throughout the country and can comfortably say that courts and arbitrators will uphold summary dismissal in appropriate circumstances.  However, the onus will be on the employer to justify the decision.

About the Author:
Stuart Rudner is a Partner in Miller Thomson’s Labour & Employment Law Group. He can be reached at 416.595.8672 / 905.415.6767 or by email at srudner@millerthomson.com. You can also follow him on Twitter @CanadianHRLaw or connect with him on LinkedIn.

Disclaimer: The views and opinions expressed in this article are strictly those of the author. CPSA does not endorse any of the companies, products and services mentioned within this article.

 


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