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Actions after termination cannot create just cause

Sheila had been employed for one year as an occupational therapist when she let her mouth get away with her.  She was talking to a newly hired social worker at the clinic where she was employed and used some harsh words in expressing her surprise over the hiring of that social worker. 

Somebody told her supervisor who confronted her.  Sheila admitted the statements and was chastised by management.  Sheila became so agitated during this meeting that she was sent home for two days with a letter that said, “If immediate and sustained improvement in your behaviour is not realized, you will be subject to disciplinary action up to and including termination of your employment.” 

After serving out her two day suspension, Sheila returned to work only to be terminated.  Apparently the employer had changed their mind about the disciplinary action they were going to take.  She was stunned and cleared out her desk and personal items before she was walked out the door.  Over the years, Sheila had collected letters from patients saying complimentary things about her and the help she had provided them.  She took those with her, probably thinking she might use them as references later. 

The problem is that Sheila had signed some very clear and specific non-disclosure agreements.  Privacy concerns in the healthcare industry are more strict than in other sectors.  The letters Sheila took had the patients’ names, addresses, healthcare information and numbers on them. 

When Sheila sued for wrongful dismissal, the employer claimed that it had just cause for her termination as a result of her conversation with the new social worker and her behaviour in the disciplinary meeting.  They also claimed that Sheila’s removal of private and confidential information from the office after her termination constituted just cause.

The first argument did not go very far in the courtroom.  One bad comment in the course of somebody’s employment or one bad conversation is not going to constitute just cause.  It may warrant disciplinary action, like a suspension, but not termination without notice.  Any employer in this situation is facing an uphill battle.  It’s tough to tell a judge that on Monday you thought the behaviour warranted a two day suspension and on Wednesday it had suddenly become just cause for termination without notice.

The employers argument that Sheila’s removal of the letters constituted just cause for her termination had a major flaw in it... she was already terminated when she removed them.  How can the employer say that your behaviour has fundamentally breached an employment relationship that has already been terminated? 

The non-disclosure agreement Sheila had signed survived the employment relationship.  It was an agreement that she would never remove or disclose confidential information.  If the employer wanted to sue her for breaching that contract or obtain an order from a judge ordering the return of the documents, it could have done so.  But relying on it as cause for firing the employee when that deed had already been done does not make sense.

Assume that I work for you.  One day you say, “We don’t have enough work.  Ed, you are fired”.  I then slap you.  You may have me charged criminally.  You may sue me for assault , even though you probably deserved it.  What you cannot do is get out of providing me pay in lieu of notice based on what I did when I was no longer your employee. 

Sheila ended up being awarded four months pay in lieu of notice which is a bit excessive for a one year non-management employee. 

Finally, just for the record, I am in no way endorsing or encouraging terminated employees to slap their bosses.  Even though you will still get your severance pay, it will be small comfort when you have to pay it all out again to your criminal lawyer and as damages for the assault.  Also, it could kill what might have been a good reference and in general it’s not a nice thing to do.
 
As published in The Hamilton Spectator, July 23, 2012
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com