Bad Behaviour 4.0: Employees getting away with...

• Author: Bowal, Peter
• Position: Columns: Employment Law

If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer's business, or if he has been guilty of willful disobedience to the employer's orders in a matter of substance, the law recognizes the employer's right summarily to dismiss the delinquent employee. Port Arthur Shipbuilding Co. v. Arthurs (Ont CA, 1967) Introduction

We scoured records across the country and found more random instances of egregious employee behaviour that Canadian courts and arbitrators have excused. In these cases, the employer had fired the employee, but the judge or arbitrator disagreed and ordered the employer to pay damages for wrongful dismissal and court costs.

On reading these, one asks: "What was that judge (or arbitrator) thinking?"

The Accountant Who Failed to Fully Disclose

McKinley v BC Tel is almost the poster child case for excusing bad behaviour in Canada. The law says that employers must be able to prove "just cause" to fire an employee without notice or severance. Grounds for summary dismissal include absenteeism, insolence, insubordination, neglect of duty, workplace conflicts, and breach of fiduciary duties. There is no exhaustive list of what kind of misconduct is "just cause".

McKinley was an accountant at BC Tel who suffered from high blood pressure. He had taken a leave of absence from work and told BC Tel that he could return to work if they found him a less stressful position. BC Tel did not find him a different position; they terminated his employment instead. After the incident, BC Tel learned that McKinley had withheld an email from his doctor stating he could go back to work if he took an additional medication. McKinley took the position that he had been wrongfully dismissed.

BC Tel's defence was that McKinley's dishonesty justified his dismissal for cause. The Supreme Court of Canada agreed with McKinley, saying at para 57:

... [it favours] an analytical framework that examines each case on its own particular facts and circumstances, and considers the nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship. Such an approach mitigates the possibility that an employee will be unduly punished by the strict application of an unequivocal rule that equates all forms of dishonest behaviour with just cause for dismissal. At the same time, it would properly emphasize...