BUILDING CASE FOR CAUSE
Howard Levitt recounts the lessons after an employee shared company secrets.
The guilty pleasure that accompanies the disclosure of a secret is an almost irresistible temptation. Taranjeet Manak was a victim of that desire and would preface her statements to co-workers with the phrase, “I know I shouldn’t be telling you this, but ...” Little did she expect this introduction would result in her dismissal.
Having been employed by the Workers’ Compensation Board of British Columbia (known as WorkSafeBC) for her entire 36-year working life, Manak’s last job was client services manager. Among other things, she had responsibilities for claims by Worksafe’s own employees under the Workers’ Compensation legislation. Because this function involved knowledge of her unionized colleagues, she had to conduct herself with extreme sensitivity and confidentiality. In addition to her written covenant and statutory duties, Manak had been cautioned by her director not to disclose any information about staff claims, even to other managers, without a legitimate business reason.
But those restrictions did not hamper Manak’s voluble nature. She volunteered to one of her staff, Shauna Kuss, about the planned discipline of an employee. On another occasion, Kuss was told about a staff person who was to be terminated later that day and the reasons for the decision. Manak’s predilection to casually share information about staff claims became legion in her department.
Word about her revelations eventually reached Manak’s director, who promptly started an investigation. As part of that process, Manak was interviewed. She acknowledged that she was strictly prohibited from disclosing confidential information to fellow employees except as required by law or in the performance of her duties. However, she adamantly denied having disclosed the imminent discipline and dismissal of employees or details of the claims of several staff.
Manak’s denials rang hollow. At least two employees confirmed that she had indeed disclosed this information. When asked again whether she had anything to add to her original statement, only then did Manak acknowledge that she may have, in one instance, inadvertently shared information but asserted that it was an isolated incident.
Because Manak’s account did not hold up, the decision was made to fire her for cause. It was apparent that she had breached her duty of confidentiality and had not been truthful in accounting for her conduct. At the termination meeting, she was given the option to retire in exchange for her signing a full release. But that offer was open for only 24 hours, failing which, the dismissal for cause would stand.
Manak opted for retirement. After signing the release, a farewell party was held.
Within weeks, Manak sued for wrongful dismissal. She asserted that the allegations were unfounded; that even if true, they did not amount to cause; and that the release was not enforceable because she was not afforded an opportunity to obtain legal advice before signing the document.
Mr. Justice Ward Branch of the British Columbia Supreme Court dismissed Manak’s arguments. The court believed the employer’s witnesses over the plaintiff. The allegations of disclosure of confidential information went to the core of the relationship of trust, particularly in light of her managerial status. The court relied on her typical prefatory comments acknowledging that she shouldn’t be disclosing the information and then proceeding to do just that. Her denials of wrongdoing, even after receiving particulars of the investigation, aggravated her wrongdoing and breach of trust and warranted her dismissal.
Finding the release to be binding and otherwise foreclosing the litigation, the court determined that Manak knew she was in trouble during the course of the investigation. Not only did she have the opportunity to obtain a referral to a lawyer, she had also conducted her own research.
This case conveys important lessons to employers on doing things right in building a case for cause:
Define the core values: Confidentiality was of central importance to the functioning of the Board and, in particular to her role. Manak signed a covenant and undertaking underscoring its significance.
Be patient in an investigation: The employer took the time to interview witnesses. It also interviewed Manak twice. This process ensured that she was afforded a full opportunity to respond to the allegations and evidence and to commit her to a position.
Take detailed notes of the investigation: Considering that the trial of a case may take place years after an investigation and terminations and the inevitable fading of memories over time, the notes assume critical significance for assessing credibility.
Obtain signed statements: In this case, Kuss had a dim memory of some of the relevant conversations, but the statements with her confirmation proved persuasive to the court.
Put specific allegations to employee: In this case, the employer was also able to rely on the grounds of lack of candour because it had confronted Manak with the allegations and she persisted in her denials.
Give the employee reasonable time to consider the offer: While the court ultimately upheld the settlement, it was critical of WorkSafe for giving only a 24-hour ultimatum, which it described as “a short fuse.”
At the end of the day, employees holding secrets would be wise to remember the words of the writer and poet Kahlil Gibran: “If you reveal your secrets to the wind, you should not blame the wind for revealing them to the trees.”