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.

Loose lips sink ships

Loose lips sink ships. That ship can be your job.
 
We all complain sometimes. We often call it “venting”. Vent, however, to the wrong person and you may find yourself out of work without a severance package.
 
A gentleman we will call Chris worked for over 10 years as a sales representative for a food distributor. Although he had some success in his initial years, in his latter days he was no saint.
 
Chris received multiple emails from his boss complaining about the lateness of his reporting on his sales activities as well as the fact that he sometimes provided inaccurate and misleading information.
 
Two or three customers told the boss that if he wanted to keep doing business with them, he would have to assign them a new sales representative.
 
When Chris got into an argument with a client who was offended by his behaviour, he refused to apologize in any form whatsoever.
 
At a trade show he took a client for dinner and proceeded to cut up his boss over drinks. The client was so offended he left without ordering a meal.
 
Finally, Chris stuck his foot in his mouth one too many times. A client was upset about late delivery of an order and Chris sent the client an email blaming his boss for the entire delay.
 
Two weeks later Chris was fired and he sued for wrongful dismissal.
 
Chris’s lawyer appropriately conceded that this last email, on its own, did constitute just cause for Chris’s termination. He argued, however, that by waiting two weeks after the employer became aware of the email to fire Chris, it had accepted and condoned the behaviour.
 
The judge rejected that argument.
 
The judge found that two weeks was a reasonable amount of time for the employer to reflect upon its course of action. Employers should not be encouraged by the courts to make hurried decisions with something as important as somebody’s livelihood.
 
As a practical matter, however, I would not advise any employer to go much beyond two weeks in making a decision to terminate someone if they want to succeed in arguing that it is just cause. An employer that finds out about some behaviour and waits a month is going to be challenged by the court to explain why it took that long to make a decision. If the behaviour was so heinous as to warrant a termination without notice, that should have been clear fairly soon and not need mulling for a whole month.
 
The reason Chris’s lawyer had to concede that the email could have constituted just cause was that it was gross insubordination and disloyalty.
 
Every employee owes their employer a duty of loyalty and good faith. That means not doing things like stealing corporate opportunities or moonlighting in a competitive position. It also means not harming the business interests of the employer. It’s called biting the hand that feeds you.
 
Regardless of whose fault the delay in the purchase order was, it can only harm the interests of the company as a whole for Chris to have blamed his superior.
 
Arguably, the conversation with the client at the trade show also constituted gross insubordination and just cause for termination without notice.
 
Chris’s lawyer’s strategy was to take the email out of the picture by arguing that the employer had waited too long to act on it and then challenged the accuracy of the other criticisms of Chris’s performance. He also argued that Chris did not receive sufficient warnings that his performance was endangering his continued employment. Putting aside the issue of the conversation at the trade show, he might have succeeded with this strategy.
 
While the employer complained many times about Chris’s performance, it never gave him a letter or told him to his face that if things didn’t improve he would be out of work. If an employer is to have any hope of terminating someone’s employment without paying out a severance package as a result of day-to-day performance issues, such as sloppiness and lateness, they must have a well-documented progressive discipline process with clear warnings.
 
While the judge in Chris’s case thought that the many emailed complaints Chris received from his boss, complaining about his sales reporting, constituted a warning, most judges would not have agreed. In this case, it didn’t matter anyway. Once Chris’s lawyer conceded, as he had to, that the email would be just cause if the employer was not found to have condoned it and the judge did not find condonation, the case was over anyway.
 
We all gripe to our co-workers from time to time about our employer or some other complaint. Unless these complaints reach a truly monumental level, they will rarely warrant the termination of somebody’s employment without a severance package. Complaining to other employees does not as immediately harm the company’s business interests as do complaints to clients.
 
When an employee cuts up the company or management to a client, clients will usually lose faith in the company as a whole. That means a loss of money and harm to the business. It is serious stuff.
 
Employees such as sales representatives who routinely deal with clients on a ongoing basis sometimes kid themselves into thinking that everything they say is confidential and that the client is their “friend”. If you are wrong and your “friend” turns on you, you may be in for a big surprise.
 
As published in The Hamilton Spectator, March 24, 2007.