Canadian Employment Law Today

CELT May 15 2013.qxp:celt 467.qxd 13-05-02 9:49 AM Page 2 May 15, 2013 since doing so would have implicated a friend of hers. The court considered all of the circumstances and found the silence Houlihan engaged in upon learning of the theft constituted dishonesty and a failure in her obligations and duties to the employer. This was sufficiently egregious so as to warrant immediate dismissal and the Houlihan's claim was therefore dismissed. Ask an Expert with Stuart Rudner Rudner MacDonald, Toronto ■ Have a question for our experts? Email jeffrey.r.smith@thomsonreuters.com. ■ DISCIPLINE: Employee's failure to report misconduct of another Question: Can an employee's failure to report another employee's misconduct constitute misconduct justifying discipline itself? Are you aware of cases where an employee has been dismissed for remaining silent regarding serious misconduct by a co-worker? Answer: The simple answer to the question is that yes, failing to report someone else's misconduct can constitute misconduct warranting discipline or even dismissal itself. Such conduct can be considered to be an act of dishonesty, by omission, and can also be a breach of policy. Of course, we all know that even if an employee is guilty of misconduct, the employer must adopt a contextual approach and consider all relevant factors in order to assess the appropriate level of discipline. Part of this assessment is to include the need for proportionality. One example of an employee being dismissed for cause due to their failure to report misconduct of a colleague is Houlihan v. McEvoy. Merrilyn Houlihan was the business manager and had been employed with the organization for two decades. However, she was also aware of thefts committed against the company, but failed to report them 2 JUST CAUSE: Cumulative mistakes justifying dismissal Question: Our organization follows a progressive discipline plan and one employee has received several verbal and written warnings for mistakes. Each mistake on its own is relatively minor, but it's apparent the employee is not going to improve and his mistakes are cumulatively costing the company. Is there a threshold where a number of minor infractions can amount to just cause for dismissal? Answer: It is always advisable to have a discipline policy in place. Progressive discipline can take many forms, but I always recommend employers not lock themselves into a strict sequence of disciplinary steps without reserving any discretion to take circumstances into account. An example of this would be a policy that provides that any first offence will result in a verbal warning, a second offence will result in a written warning, and so on. In that context, the employer can find itself in the situation where an employee is guilty of particularly serious misconduct, but the employer is bound by the wording of its own policy to impose nothing more than a verbal warning. If they attempt to take a stronger position, the employee may complain that the employer has not followed the policy it drafted. Conversely, just cause can be established "brick by brick," as the late Justice Randall Echlin of the Ontario Superior Court of Justice explained in Daley v. Depco International Inc., in cases where the individual instances of misconduct are insufficient, in and of themselves, to warrant dismissal. In that case, Daley was disciplined for nine different incidents, ultimately resulting in his dismissal for cause. The offences included carelessness, suspected alcohol impairment, unreported absences, and altercations with colleagues. The employer sought to rely on all nine incidents to justify the termination. In his decision, Justice Echlin found that while each of the incidents, on their own, might not be sufficient to prove just cause, the series of incidents, viewed as a whole, amounted to "enough bricks to constitute a just cause wall." In reaching this decision, Justice Echlin explicitly referred to the Supreme Court decision in McKinley v. BC Tel and the requirement that a contextual approach be used, taking into account all of the relevant circumstances. CELT For more information see: ■Houlihan v. McEvoy, 2002 CarswellBC 20 (B.C. S.C.). ■ Daley v. Depco International Inc., 2004 CarswellOnt 2574 (Ont. S.C.J.). ■McKinley v. BC Tel, 2001 CarswellBC 1335 (S.C.C.). Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He is author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at srudner@rudnermacdonald.com. MORE ASK AN EXPERT To view answers from our experts from past issues of Canadian Employment Law Today, go to www.employmentlawtoday.com and click on "Advanced Search," where you can search for articles by keywords or department. Published by Canadian HR Reporter, a Thomson Reuters business 2013

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