Taken individually, none of the things that a long-serving manager did justified dismissal with cause. However, when the employee’s conduct was considered collectively and combined with the employee’s lack of credibility at trial, an Alberta court denied the employee’s wrongful dismissal claim for more than $1 million.
The Alberta case (“EPCOR”) provides a precedent for employers to justify the summary dismissal of a 60 year-old employee with 32 years of service, even when the employee had no record of discipline, and the employer had condoned some of the employee’s similar misconduct in the past prior to dismissal.
Prior to the dismissal, the employee (the “Employee”) enjoyed positive performance reviews. In June 2009, the employer assigned the Employee to a position as the Senior Consultant of a large Internet-based project. However, that same month, management received an email (“Informal Complaint”) from two employees who expressed concerns with the Employee’s leadership approach and ethical conduct. The Informal Complaint led to an investigation, which led to the Employer’s dismissal of the Employee with cause less than two months later.
The Informal Complaint alleged five categories of misconduct:
- failing to disclose a conflict of interest arising from the Employee’s husband work as a consultant to the employer on a project that the Employee had overseen in a managerial capacity;
- directing subordinates to destroy an email in an attempt to conceal information from the employer’s business partner;
- conducting herself in a disrespectful manner that amounted to workplace harassment;
- using the employer’s time and resources inappropriately for her personal benefit; and
- obtaining reimbursement for a personal dinner with her husband that the employee improperly characterized as a business expense.
The trial judge determined that each of the five alleged acts of misconduct had occurred.
In weighing the evidence with regard to conflict of interest, the trial judge held that it was “inconceivable” that the Employee could have been, as she claimed to be, unaware that her husband had been hired by a contractor that completed work for the employer on a major project over which the Employee acted as supervisor.
With regard to destroying evidence, the Employee gave evidence at trial that she had “too much integrity to ever say ‘destroy evidence’”. However, an email sent from the Employee to a number of co-workers that stated, “… destroy this e-mail immediately as we don’t need it as part of evidence”, undermined the Employee’s credibility.
The trial judge also held that the Employee’s work with the employer “was at times tainted by significantly problematic personal interactions, and as a result she failed to promote a respectful, healthy work environment”.
It was further held that the Employee misused company resources and filed an improper expense claim. The misuse of resources and the improper claim amounted to a rough total loss to the employer of $240.
In determining whether the Employee’s actions amounted to just cause for dismissal in the circumstances, the trial judge noted that the actions violated the employer’s clear and publicized policies related to ethical conduct.
Ultimately, the trial judge held that, notwithstanding the Employee’s clean discipline history and that the employer had condoned some of the Employee’s similar conduct prior to the Informal Complaint, the cumulative effects of the Employee’s behaviour, when viewed in light of her subsequent rationalization and minimization of her misconduct throughout the Investigation, amounted to conduct that justified dismissal with cause.
Lessons from the Case
Perhaps the greatest lesson from EPCOR is a lesson for employees: if you do something that violates company policy, denying it or attempting to cover it up may make the employment relationship worse than it would have been, as the failure to take responsibility often erodes the trust needed to sustain the relationship.
For employers, EPCOR provides a precedent in which a long-serving employee with no discipline history may be dismissed for cause, even when most of the employee’s conduct, taken in pieces, would not constitute just cause for dismissal, and the employer had condoned the employee’s similar conduct in the past. The fact that the Employee was a manager and held a position of trust worked against her, particularly as the trial judge did not accept much of the Employee’s evidence.
EPCOR also highlights that importance of conducting proper investigations, as the employer’s investigation was subject to intense scrutiny in court, and it was an essential part of the employer’s case that the trial judge determined that the investigation had been fair and unbiased.
EPCOR indicates that employers may summarily dismiss employees, even long serving employees, when the employee’s conduct justifies the employer’s loss of trust in the employee, particularly when the employee is in management position.