To terminate or not. Decision is the courts
Instead of laying new tiles in an Inco renovation, he diverted them to his garage for personal use. Although he completed all of the requisite paperwork, his supervisor suspected wrongdoing. The ensuing investigation revealed that inferior tiles were used in the renovation.
Unlike the sponsorship scandal’s Coffin, Courchesne’s admission of guilt did not alleviate his consequences and, despite his 28 years of service, the court upheld the termination.
But when Donavan Bravo took only two screws home Etobicoke Ironworks fired him, despite the absence of a warning. When Bravo was unsuccessful over the next two years in finding re-employment, he sued, alleging dismissal was too harsh a penalty.
The Ontario Superior Court agreed, concluding although there should have been some discipline, dismissal was excessive as the misconduct did not amount to fraud.
One act of dishonesty generally is only grounds for dismissal if the employee is in a position of trust and, as result of the misconduct, the employer cannot realistically ever again work effectively with that employee.
The court will look at the magnitude and context of the behaviour as well as the position of the employee, to decide whether it is reasonable to require the employer to give the employee a second chance.
In deciding whether dismissal is excessive, the courts consider whether the employee operates without supervision, is responsible for setting or enforcing the very rules breached, the potential consequences of the theft or fraud, whether it was premeditated or spontaneous and, most important, whether the employer could again reasonably trust that employee.
Employers wishing to rely on corporate policies requiring dismissal for misappropriation must ensure:
The rules regarding the use of corporate property are known and distributed;
The rules are consistently enforced;
There is no reasonable excuse for the misconduct;
The penalty is proportionate to the misconduct, and;
In all of the circumstances, the relationship was irremediably ruptured.
Financial Post Howard A. Levitt is counsel to
Lang Michener LLP. He is author of The Law of Dismissal
in Canada and The Quick Reference to Employment Law,
and editor- in- chief of The
Dismissal and Employment
Law Digest. He practises
throughout Canada.
He can be reached at
hlevitt@ langmichener. ca