Usually when we talk about damages for wrongful dismissal, we look at the number of months, we try to calculate what a month is worth and we take into account salary, bonuses, commission, benefits, car allowance, pension, etc. And when we negotiate a settlement, we might throw in a token amount for the cost of finding new work, but that's usually an afterthought.
An individual’s response when confronted with allegations of misconduct is a critical factor
On Saturday, Jews around the world observed Yom Kippur, the Day of Atonement. This followed the 10-day period during which Jews are expected to contemplate their conduct, apologize to those they may have offended, and atone for their sins. There are many great quotes from the relevant literature, but the message that I take from them is that God does not want to punish sinners. Rather, he is waiting for them to change their ways, and if they do so, he will welcome them with open arms.
So what does this have to do with employment law? It made me think of the way that the law has developed with respect to discipline and dismissal. In my study of summary dismissal in the course of writing and updating my book, You’re Fired! Just Cause for Dismissal in Canada, one thing that has become clear is that, particularly in recent years, an individual’s response when confronted with allegations of misconduct will be a critical factor in the determination of whether they should be dismissed for cause or given another chance.
As I have written about several occasions (for example, “Investigating just cause)”, all else being equal, an employee who is honest and forthright, accepts responsibility for her actions and offers reasonable assurance that she will not do it again, is more likely to be given a second chance. In order to justify summary dismissal, the employer must demonstrate that it should no longer be expected to employ the individual – that the employment relationship has been irreparably damaged, and that the trust necessary to the relationship no longer exists. If the individual “atones” for her sins, then it is more likely a court will find that she should be welcomed back into the workplace. Of course, other factors will be taken into account as appropriate.
While I am not suggesting that employers in Canada should be like the notional God found in some religious texts, there are some lessons to be learned. The approach in the religious texts is one of forgiveness, rather than punishment. Conversely, many employers see punishment as their goal. It is not unusual for employers to contact their lawyer and ask how to go about firing an employee is suspected of misconduct.
When I receive such a phone call, I advise our client to investigate the matter. To begin with, they need to be sure that the accused individual is guilty. In some cases, there may be some misunderstanding or misinterpretation of facts. Even if the individual is guilty, I advise our clients that they must give the individual opportunity to respond to the allegations and raise any mitigating factors that exist.
Unfortunately, many employers do not want to through this exercise or, if they do, they conduct the investigation as a prosecution, seeking to prove that the employee was guilty rather than find out what happened and why. That is a mistake. To begin with, courts will be extremely critical of any investigation that is not conducted fairly and objectively (and even more critical where there is no effort to investigate at all before dismissal). In such circumstances, it is far more likely that additional damages, beyond severance, will be awarded
Failure to investigate objectively is also a mistake because it will deprive the employer of relevant information. As I advise our clients, the manner in which the employee responds will lead to one of two results: Either it will provide even more evidence of dishonesty, and therefore more justification for dismissal, or it will make the employer aware of mitigating factors that may come back to haunt them if they proceed with the dismissal.
If the employee lies about what happened, or makes efforts to cover it up, or behaves in a disrespectful or insolent manner, then the argument that the employment relationship has been irreparably broken will be even stronger conversely. If the employee is apologetic, or raises mitigating factors, then the employer should take this into account before proceeding with dismissal, or they may expose themselves to liability.
While it may be easier said than done, employers should approach this type of situation with an open mind, looking for reassurance that the employment relationship can be resuscitated rather than hoping to fire the individual. That will definitely look better if the matter ends up before a court or arbitrator, and will reduce the likelihood of additional liability if the dismissal is found not to have been warranted. And, perhaps, it is also the right thing to do. Not to be taken advantage of, but to be forgiving.
Originally published by Canadian HR Reporter, Thomson Reuters Canada Limited.