In the event of a Canada Post strike in September 2018, we will do our best to ensure alternative delivery methods are used for client communications.  We can accept communications via email at contact@rossmcbride.com or fax 905.526.0732.  For account payments e-transfers and credit card payments can be made.  Please call us for further instructions 905.526.9800.

Admitting mistakes could avoid just cause termination

A man we will call Jay got a job working for a car parts manufacturer when he was 22 years old. He started as a labourer. 23 years later he was a vice president with significant client responsibilities. He mostly used his car for work purposes but one day he decided to go and see a client in Alliston and took the employer’s truck from the yard without asking.
 
After the meeting he started to head back south to Toronto but decided instead to turn around and go to Webber’s for a burger an hour north.
 
He got tired of driving and stopped somewhere else for lunch. During that lunch he had four beers and then got in the truck and headed south. He lost control of the truck and rolled it. Most of the cab was removed and crushed. There was no glass left and much of the front end was missing. Jay broke his neck but amazingly recovered and didn’t hurt anyone else. He was charged with drunk driving and eventually pled guilty.
 
About a month after the accident Jay was terminated and the employer claimed it had just cause and did not have to provide him with a severance. Jay sued.
 
The judge noted that normally, a single isolated incident will not be sufficient cause to dismiss a long service employee, particularly one with a clean disciplinary and performance record. The one single event must be particularly egregious to justify dismissal without a package.
 
How do you think the judge decided?
 
The judge noted that Jay was middle-aged and without a university education or other certification. He had spent his entire working life with this employer and would be facing a significant challenge to find new employment. He had a clean record of discipline and no complaints whatsoever about his performance. There had never been a concern about his consumption of alcohol or unsafe behaviour before.
 
The judge also noted that Jay drove the employer’s vehicle drunk and without even having permission to have taken the truck that day. He noted that Jay was lucky to have survived and not to have hurt somebody else. The employer was put at risk of being found liable to third parties if Jay had hurt someone, was put at risk of paying out Workplace Safety and Insurance Board claims (although it was denied), and its customers would not think much of it if they thought it could not properly control and direct its employees. Their reputation and goodwill within their industry would be harmed.
 
The judge also noted that in his evidence at trial Jay claimed he was not drunk at the time of the accident even though he had already pled guilty to drunk driving. It sounded to the judge like Jay did not want to take full responsibility for what he had done.
 
Jay lost. The judge found there was just cause for termination.
 
Some people will think that this was a no brainer. Jay engaged in criminal behaviour with the employer’s property during the work day. Others will agree that Jay’s behaviour was very bad but the 23 years of loyal and exemplary service should not be wiped away in one bad day.
 
Upon reading this decision, I have a feeling that if Jay had simply said, “I was an idiot. I did an awful thing. I drove drunk and I should have known better”, this decision might easily have gone in his favour. I can understand judges who deal constantly with drunk drivers in their courtroom being peeved at somebody who has already pled guilty to the offence who still can’t admit they did wrong.
 
Sometimes, one bad day can not only end your employment but see you let go without any pay in lieu of notice.  Jay made no real effort to communicate with his employer between the date of the accident and his termination although he was out of the hospital within five days. He would have been well served to immediately have confessed his sins and thrown himself on their mercy. He might have avoided the termination in the first place.
 
As published in the Hamilton Spectator, September 3, 2012
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com