How bad behaviour? Employees getting away with ....

• Author: Bowal, Peter

Introduction

The last column discussed the need for employers to practice progressive discipline. That concept means employees should be fired--that is, summarily dismissed without notice or pay--as a last resort and only where clearly justified. In this column, we look at some decisions which demonstrate how hard it can be to fire an employee for even egregious misconduct under Canadian law.

The McKinley v BC Tel Doctrine

The Supreme Court of Canada set the bar high for firing misconduct about 15 years ago in its decision in McKinley v BC Tel [2001] 2 SCR 161, 2001 SCC 38 (CanLII) http://canlii.ca/t/521q. This decision was profiled several years ago in this column. The Supreme Court of Canada ruled that the context of the misconduct and its impact on the employment relationship must be considered when determining just cause for dismissal. In giving a pass to dishonest employees, this case forced judges and arbitrators in summary dismissal cases today to conclude that the misconduct must show that "the employment relationship could no longer viably subsist." The McKinley doctrine still challenges employers who believe they have serious cause to fire a worker.

Bad Behaviour Excused

In Soplet v. Bank of Nova Scotia, 2007 CanLII 47145 (CA LA), http://canlii.ca/t/1tknq, Shawn Soplet admitted buying marijuana from a co-worker on the work premises. After a suspension and subsequent investigation, he was dismissed without pay. The adjudicator referred to McKinley and analyzed the contextual proportionality of the dismissal. He noted:

* there was no damage done to the reputation of the bank;

* there was no financial or operational compromise to the bank's functions;

* the employee could be rehabilitated (it was a one-time offence); and

* the record of performance was exemplary.

The adjudicator found no cause for summary dismissal and awarded damages.

In Cook v Universal Coach Line (2006), Eric Cook, a bus driver with a bus load of passengers, failed a roadside blood alcohol test. While he was being held by police for almost three weeks due to an alleged parole violation, his employer dismissed Cook without reviewing the facts with him. The adjudicator was not convinced this employer-employee relationship was broken, and noted Cook's clean record of employment, and the absence of a progressive discipline program. He reinstated Cook from the time of his decision. In this case, illegal purchase and consumption of intoxicants while working was not...