Confidentiality Breach Can Be Just Cause for Termination

• Author: Marie-Yosie Saint-Cyr, First Reference Managing Editor
• Date: September 20, 2018

Despite its high threshold, the British Columbia Supreme Court upheld the just cause dismissal of a long-service management employee following a series of confidentiality breaches.

What happened?

After 36 years of service, a manager’s employment was terminated for breaching the employer’s confidentiality standards. Given the highly sensitive nature of her position for being in charge of client services, claims made by internal employees and as an ethics adviser, the allegations were especially serious as a co-worker claimed that the manager was sharing confidential information about internal employees with other subordinates by prefacing it with, “I shouldn’t be telling you this, but….”

Following an investigation, the employer dismissed the manager for just cause without severance pay but offered her 24 hours to consider retirement instead, which would afford her four months’ salary in exchange for executing a release. The 61 year old manager elected to retire and signed the release.

Despite her decision, the manager sued the employer for wrongful dismissal.

During the trial the parties did agree that had the manager been dismissed without cause, she would have been entitled to 18 months’ salary due to her long-service employment of 36 years.

Therefore, the court had to decide whether the employee was properly dismissed for cause, and whether the release is enforceable.

British Columbia Supreme Court

Generally speaking, employers have the right to terminate employees, but they are required to give notice that the employment is ending. There is an exception to such a notice requirement. The exception applies where the employer can prove “just cause.”

If the employer terminates an employee for cause, the employee is not entitled to notice or pay in lieu of notice. However, the onus is on the employer to prove that an employee’s behaviour or conduct was so unacceptable that it justifies dismissal with cause without the required notice.

Informed by Panton v Everywoman’s Health Centre Society (1988), 2000 BCCA 621, the test of establishing just cause is “an objective one, viewed through the lens of a reasonable employer taking account of all relevant circumstances.” It requires a serious examination of both the circumstances surrounding the alleged misconduct and the degree of the misconduct. As part of this objective but contextual analysis, it is important for the employer to consider the suitability of alternative disciplinary measures to dismissal.

Due...