Trump's presidency a cautionary tale for dismissed Canadian employees.

Accountability doesn't end when job does

It ain't over till it's over. Last week, people across the world watched with breathless anticipation, disgust, or exhaustion — maybe all three — as former U.S. president Donald Trump was impeached, but not convicted, for the second time in 14 months.

Those closely following American politics will know that the U.S. Senate first had to resolve whether a former president could even be impeached after leaving the White House.

According to a majority of the senators, they can.

There are many lessons to be drawn from the saga of Trump's presidency. We can even find a cautionary tale here for recently dismissed Canadian employees.

Workers may be tempted to assume that once they walk off the job site for the last time (or, in today's world, log out of their very last Zoom meeting), and cash their last paycheque, they become free and clear of the impediments of their office.

Not so fast.

As a practical decision, employers will almost always choose to dismiss an employee on a without-cause basis. Even if the employer had lingering suspicions as to the employee's behaviour or misgivings about their performance, this is generally the safer choice.

A without-cause dismissal means the employer will have to pay severance to the departing employee, but that also means the employer can fire a staff member at any time and need not provide reasons or justify the decision.

The difficulty of justifying a dismissal for cause should not be underestimated. To do so, an employer must have clear, convincing evidence of misconduct or gross negligence, usually after warnings.

A suspicion or an isolated incident is usually insufficient, so it is often simpler to just pay the employee and let them walk away.

But sometimes an employer doesn't see the whole picture until the employee has left. Whether through connivance or luck, the employee's history of misdeeds and sloppy work remained hidden. Maybe, the employee was in a position of authority and used it to perpetrate a reign of terror, and it was not until he left that his coworkers felt confident enough to report the extent of his bullying to human resources.

Or maybe she was an inveterate thief of company resources, and not until her departure did IT comb through her work computer and discover the truth.

Now that the employer's suspicions have been confirmed and they have the evidence to back it up, is it too late?

No. As it turns out, American ex-presidents are similar to Canadian ex-employees in that both can be held responsible for their actions even after they have left their position. While enough Republicans protected Trump to grant him an acquittal in the Senate, a proposed 9/11-style inquiry and possible criminal prosecution means the former president is not home free just yet.

In this case, the employer can assert “after-acquired cause.” The phrase means what it sounds like it would — behaviour that would be considered cause for dismissal that the employer only discovered after the employee's departure.

This will have immediate and serious repercussions for the employee.

If the parties are in the midst of negotiating the terms of the departure, the employer is suddenly no longer under any legal pressure to provide a separation package.

Even if the employee has already been paid notice and severance, the employer can sue to recover it.

If the employee is now suing for wrongful dismissal damages, the employer can wield the after-acquired cause as a defence or as a basis for a counterclaim if it has suffered a loss as result.

Of course, companies should be cautious about making this argument. An employer who has already dismissed an employee without cause must be exceedingly certain that it now has the necessary evidence and arguments to change course.

If the employer claims that it discovered after-acquired cause, and cannot back it up, there is a chance that a court would award serious bad faith damages against them.

As one judge famously put it, employers should not act like “employment archaeologists,” rifling through the “remnants of an employee's work history in the hope of unearthing grounds for dismissal where none was thought to exist.”

Although it is not a decision that employers should make lightly, it remains a powerful option at their disposal.

Recently dismissed employees with skeletons in their closets, whether of the insurrection-inciting kind or one more banal, should not sleep easy just yet.

The mills of the gods grind slowly, but they grind exceeding small.

Financial Post

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com. Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of

Dismissal in Canada.