Gillespie v 1200333 Alberta Ltd., 2012 ABQB 105

In Gillespie the plaintiff employee was an occupational therapist who had been dismissed based on interpersonal conflict. One warning was given to the employee and she was dismissed three days later. Immediately following her dismissal, the employee cleaned out her desk and took a number of letters with her. These letters were complimentary however, they also contained sensitive and confidential information regarding her patients.

Once the defendant employer discovered the employee had removed these documents, the employer alleged the employee had breached the Non-disclosure Agreement. This breach was used to justify the employer’s position that the employee had been dismissed with cause.

The Trial Judge concluded that while the evidence of personality conflicts and communication problems were not sufficient to justify the employee’s dismissal, the employee’s breach of the Non-disclosure Agreement was sufficient to justify dismissal.

On appeal to the Court of Queen’s Bench the trial decision was reversed based primarily on the Trial Judge’s conclusions on the facts. Specifically, the Trial Judge did not find the employee’s removal of documents indicated a character flaw. Instead, he concluded that the breach of the Non-disclosure Agreement was a breach of a material term of the employment contract and that it would be detrimental to the employer’s business.

Gillespie draws a careful distinction between misconduct prior to termination and misconduct after termination. In this case the employer was relying on after-acquired knowledge of a post-termination breach to justify the original dismissal. Justice J.M. Ross concluded there are other ways to enforce Non-disclosure Agreements, and that to allow an employer to retroactively justify termination and repudiation of an employment contract by relying on an employee’s post-repudiation breach is illogical and unfair.

Gillespie also confirmed that general reference to the Employment Standards Code (the “Code”), and the “guidelines” are not specific enough to put the employee on notice that their rights are limited to the amounts prescribed in the Code. Justice Ross ultimately assessed the period of reasonable notice at four months.