Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com with Stuart Rudner Ask an Expert RudneR Macdonald ToronTo Canadian HR Reporter, a Thomson Reuters business 2015 2 | April 1, 2015 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Answer: Sometimes, the evidence found during an investigation will clearly show that an individual was guilty of misconduct. Perhaps, as the reader suggests, the accused was caught "red-handed" and cannot deny what she has done. Even in such circum- stances, and as discussed in many previous articles and blog posts for Canadian HR Re- porter, just because an employee is guilty of misconduct does not mean she can be fired for just cause. Once misconduct has been shown, the employer must undertake an assessment as to whether the employment relationship has been irreparably harmed, which will involve a contextual analysis of all relevant circumstances. In many cases, discipline will be warranted but summary dismissal will be disproportionately harsh, in light of all of the circumstances. In most cases, the evidence may not meet the criminal standard of beyond a reasonable doubt. Nevertheless, as our judges do in civil courts every day, the employer is entitled to reach a reasonable conclusion based upon the evidence before it. Every investigation should include inter- viewing of witnesses and the accused. In particular, the accused should be confront- ed with the allegations and given a reason- able opportunity to respond to them. If, at the end of the process, the employer is of the view that it is likely that the employee engaged in the suspected misconduct, then discipline will be appropriate. As set out above, it will then have to consider all of the relevant circumstances in order to determine whether summary dismissal can be justified. However, just because the misconduct cannot be proven "beyond a shadow of a doubt," that does not mean the employer is precluded from taking action. is issue often arises in circumstances where one employee accuses another of harassment. Many such cases come down to an issue of credibility. As I discussed in a recent seminar on how to deal with allega- tions of harassment (which is particularly timely in light of the Jian Ghomeshi situa- tion), employers cannot simply conclude by saying there is contradictory evidence and they cannot reach a definitive conclusion. It is up to the employer to assess all of the evi- dence, including the story of the accused, and weigh it against the evidence of other witnesses (if any), as well as considering whether the accused's explanation has an air of reality. In other words, the employer is entitled to assess credibility and reach a conclusion, even when the evidence is not definitive. WeBInaRS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as attendance management, employment standards, the new Labour Market Impact Assessment, and key developments in employment law. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. Length of service factor in just cause Question: Is it true that the longer an employee's service, the more warnings or suspensions she should be given for misconduct before resorting to dismissal? Answer: As referenced in the previous question, any assessment of misconduct and the potential for summary dismissal must adopt a contextual approach which takes into account all relevant circumstances. One of those factors will be the employee's length of service. Other factors will include their previous disciplinary history, if any, their response when confronted with the al- legations, and any mitigating circumstances. Generally speaking, a long-term employee, particularly one with a clean record, will be entitled to greater deference than a short- term employee with a history of misconduct. When I give presentations on the law of dismissal, I often give the example of two employees that engaged in the same mis- conduct. Employee A has been with the company for 30 years, never been in trou- ble, admits the misconduct without being confronted, and offers an apology and as- surance that it will never happen again. Em- ployee B has only been with the company for six months, has already been disciplined several times, and refuses to admit any wrongdoing even when confronted with ir- refutable evidence. In those circumstances, it is quite likely that a court will find that em- ployee A is entitled to a second chance, but that employee B can be dismissed for cause. e short answer is that yes, an employ- ee's length of service will be a factor in the assessment of whether summary dismissal is appropriate. However, there are many other factors to be considered as well. Stuart Rudner is a founding partner of Rud- ner MacDonald LLP, a Toronto-based em- ployment law firm. He is author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a omson Reuters business (see www.carswell.com for more information or to order your copy). He can be reached at srudner@rudnermacdonald. com. The employer is entitled to reach a reasonable conculsion based upon the evidence before it. The threshold for just cause Question: Can there be just cause for dismissal — or at least significant discipline — if an employee isn't caught red-handed and there are no witnesses, but through a process of elimination is the only possible culprit of serious misconduct such as vandalism or drug use at work? RudneR Macdonald llP ToronTo

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