Sometimes you can sense that the end is near. Sometimes it’s a shock

Sometimes people can smell a termination of their employment coming and mentally prepare themselves.

Sometimes it is a total shock that sends them spinning. That is what happened to Greg. Greg was 70 years old and had been employed for 22 years by his company. He was the health and safety manager.

Greg knew there had been some tension with his boss of late, but given his years of loyal service, he had no clue his employment was in danger.

One afternoon the boss sat him down and gave him a letter indicating his employment was terminated 12 months later. Like all such letters do, it indicated that the employer reserved the right to terminate him if he failed to faithfully and diligently carry out his duties in the next 12 months.

Greg took it as a message that, undeservedly, the employer did not trust him.

The meeting was on a Friday and on Sunday Greg came to work using the keys he still had for a couple of hours and deleted a variety of emails and forwarded others to his personal email address.

He also corrupted a spreadsheet that listed all employees and their training accreditations

Within the next few days he sent in a doctor’s note indicating he was not able to function and could not work.

He still managed to return to work twice within the next four days to delete and forward more e-mails in off hours.

The employer discovered this behaviour and sent him a letter at home.

Greg’s response was to tell the employer that their letter caused him even more stress, anxiety and depression than he was already experiencing and any further communications should be through his lawyer.

Telling your employer they can only talk to you through your lawyer, especially when you are already in the dog house, is not exactly a great strategy.

The judge thought Greg’s response could be “explained by the emails being sent at 1:33 a.m., never a good time for coherent electronic communication, even by heads of state.” (Trump’s influence is ubiquitous.)

The next morning, Greg’s lawyer sent a letter on his behalf apologizing for “his recent actions that may have caused the employer inconvenience.”

The lawyer explained Greg was distressed over the loss of hislong held position and promised he would not return to the workplace again until he was cleared to do so. Through his counsel, Greg offered to fix the spreadsheet or provide instructions on how to do it.

That night, the employer indicated by email it was terminating Greg and it eventually took the position there was just cause for his termination as a result of his corruption of the spreadsheet and email deletions and transfers.

When Greg sued for wrongful dismissal, claiming he still deserved a severance package, the judge had a difficult decision to make.

On the one hand, Greg was a loyal, 22-year employee who had never been disciplined in all of that time. He was extremely stressed in that first week when he kept going to the office to mess with the computer.

On the stand, as he had before, Greg apologized profusely for his behaviour and actually broke down when he was trying to explain to the judge what caused him to do it.

On the other hand, the employer was faced with an employee who had quite admittedly committed sabotage with respect to an important document and deleted others.

Was the employer obliged to accept that this behaviour was an aberration and trust Greg for the rest of the year? The judge decided that there was not just cause for Greg’s termination.

When Greg was deleting and transferring all of those e-mails, he knew perfectly well they were all backed up on a server and if the employer really wanted them, they could easily get them because he had to do the exact same thing in the past.

The employer claimed it took 70 person hours to fix the spreadsheet but the judge noted that if they had sent it by email to Greg and let him fix it when he offered, it could have been avoided.

Importantly, the night the employer indicated Greg was being terminated, the employer did not know what emails had been deleted and if they were important.

It was clear Greg did not send emails to his home address for some nefarious reason like competing with his employer. The judge thought that the employer simply seized upon Greg’s actingout behaviour as a means to terminate the relationship without further expense rather than considering the entire context.

Greg was awarded 19 months pay in lieu of notice.

No employee should take Greg’s story as licence to engage in bad behaviour.

Greg could easily have lost his case and been left with a legal bill.

Ed Canning practises labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com

For more employment law information; www.hamiltonemploymentlaw.com

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Telling your employer they can only talk to you through your lawyer is not exactly a great strategy.