Failure to get the full story costs employer a bundle

As an employer, no matter how sure you are of your facts, how convinced you are that some great wrong has been committed by an employee, there is only an upside to giving them a chance to explain themselves before terminating the relationship.

Conversely, not giving the employee an opportunity to tell their side can have a significant downside.

Lorraine worked as a social worker for a small band council in Northern Canada for 20 years.

In a community of 1,200 people connected by roads only in the winter, jobs were scarce.

One day while she was at the only store in town, the band chief walked up to her and handed over what turned out to be a termination letter.

It accused her of verbally and physically assaulting a co-worker two weeks before at the band office where she worked. The employer claimed it had just cause to terminate her employment and offered no severance package.

Band councils are governed by the Canada Labour Code and under that legislation an employee with more than a year’s seniority who is terminated can file an unjust dismissal complaint within 90 days of their termination date.

If the parties cannot mediate a resolution, an adjudicator is assigned and a hearing held. The remedies available range from lost wages to reinstatement.

Although Lorraine had heard rumours of the allegation circulating in her small community, her employer had never spoken to her about the issue.

At the hearing, Lorraine got to hear the details of the allegations that led to her termination.

Her co-worker alleged that when a small child running around the band office fell and hurt himself, the co-worker was rushing through a doorway when he encountered Lorraine and she had given him a two-hand push against the wall.

Lorraine denied having made any physical contact with the coworker and gave evidence that she had no animosity whatever toward him. She thought they got along reasonably well.

It turned out that not even her immediate supervisor was consulted about the issue before Lorraine was terminated.

The adjudicator found that no genuine effort was made to get to the bottom of what happened.

He quoted the following words of the Supreme Court of Canada from a previous case: “The obligation of good faith and fair dealing is incapable of precise definition. However, at a minimum, I believe that in the course of dismissal, employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive.”

The adjudicator noted that even if Lorraine had given her co-worker a push, it was in the context of a number of people rushing along a corridor to get to a potentially injured child.

Lorraine was awarded nine months of lost wages. She had not found new work.

She was also awarded $10,000 for punitive damages for the embarrassment and suffering she sustained due to the high-handed behaviour of her employer in not asking for her side of the story. Another $9,000 was awarded to cover her legal costs.

Even a five-minute conversation could have changed things for the employer.

I have often been consulted by employers who think there is no point in talking to the employee because they are certain of what behaviour took place and equally sure that there is no possible rational explanation.

My experience is that just when you think there is no possible excuse, there is one.

Even if there is not and the employer was right about the situation from the beginning, you never lose points for having the conversation.