Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends One strike and you're out! When a single act of misconduct can be just cause for dismissal BY RICH APPIAH AND ANDREA STODDART THE BAR may be high for employers to prove just cause for dismissal, but some- times even an instance of misconduct can be enough. In the recent case of Steel v. Coast Capital Savings Credit Union, the Court of Appeal of British Columbia held that a single act of dishonesty justified the summary dismissal of an employee with 21 years of unblem- ished service. is case reinforces the notion that employees can be dismissed summar- ily – without notice or pay in lieu of notice – when acts of seemingly minor misconduct ultimately reveal an irreparable breakdown in an employment relationship. Susan Steel was part of a helpdesk team that provided internal technical assistance to other employees of a credit union. Her work was generally unsupervised and she was one of few people within the organization who had unfettered access to all of the documents stored electronically on the credit union's computer system, including personal fold- ers assigned to employees for the storage of confidential documents. As a result, she was in a position that required the complete trust of the credit union. e credit union provid- ed Steel and her colleagues with a detailed policy and protocol that they were to follow when accessing personal folders. Ultimately, Steel knew that she could only access docu- ments in a personal folder after she received express permission to do so. Without authorization and for her own purposes, Steel accessed the personal folder of a manager to find out where her name was on a parking priority list. She was caught when the manager was not able to access the document because it was open on Steel's computer. Notwithstanding her clean disci- plinary history, Steel was swiftly dismissed for cause. She sued and a trial judge found against her. Steel then appealed to the B.C. Court of Appeal. e appeal court upheld the trial judge's decision and found that "(Steel's) conduct… breached the faith inherent to the work re- lationship, the result of which was that the relationship had irrevocably broken down." In arriving at this conclusion, the appeal court relied on the fact that Steel occupied a position of trust in a financial sector where trust was of paramount importance. e ap- peal court held that Steel intentionally broke that trust by accessing a confidential docu- ment for her own benefit and violating the company's clear policies by not obtaining permission to do so. Take-away for employers and employees e appeal court's decision confirmed that a single act of misconduct may justify a sum- mary dismissal in certain circumstances. e existence of a clear policy governing Steel's conduct was essential to that find- ing. us, if an employer has a particular interest in maintaining certain standards of conduct, such as the respect of confidential information, then the employer should en- sure such standards are written in a policy that is widely circulated to employees and is consistently enforced. is is particularly important in workplace settings where em- ployees enjoy a significant amount of auton- omy in their roles and the employer must trust them to perform their duties honestly and in good faith. Our courts will continue to apply a contex- tual approach in analyzing whether acts of misconduct amount to just cause, so not ev- ery breach of a policy will support the sum- mary dismissal of an employee. Neverthe- less, employees are best advised to adhere to policies made known to them. Although em- ployers face a high burden in defending just cause dismissals, in the face of even a single policy breach, Steel v. Coast Capital Savings Credit Union makes clear that the courts will not always favour the employee. For more information see: • Steel v. Coast Capital Savings Credit Union, 2015 CarswellBC 710 (B.C. C.A.). ABOUT THE AUTHORS RICH APPIAH Rich Appiah is a partner practicing labour and employment law with Israel Foulon LLP in Toronto. He has appeared before the Ontario and Superior Courts of Justice, the Court of Appeal for Ontario, and the Ontario Labour Relations Board. He has also represented clients in proceedings before boards of arbitration, the provincial and federal Human Rights Tribunals, the Ontario Ministry of Labour (Employment Standards Branch), and the Canadian Industrial Relations Board. He can be reached at (416) 640-1550 ext. 225 or rappiah@israelfoulon.com. ANDREA STODDART Andrea Stoddart is an associate practicing labour and employment law with Israel Foulon LLP in Toronto. She has appeared before the Ontario Superior Court of Justice, Court of Appeal for Ontario and the Workplace Safety and Insurance Appeals Tribunal. She can be reached at (416) 640-1550 ext. 227 or astoddart@israelfoulon.com. 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 mitigation, labour inspections and audits, attendance management, and key developments in employment law. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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