More than one bad day needed for just cause

Ted was 59 years old and had been employed as a warehouse manager for nine years.
 
It was a well-established tradition that since employees had to work extra hours to do the yearly inventory, the employer supplied beer for them to drink after the inventory was done and before they went home.  On the day that the inventory was being done in November of 2006, Ted saw the sales manager having a beer during his lunch. The beer was already there for the end of inventory celebration so Ted had two during his lunch.
 
While Ted’s boss saw the sales manager and others having a beer during their lunch, he did not see Ted drinking. In any case, he said nothing to those he did see drinking beer.
 
Near the end of the day Ted’s boss asked him to move a pallet of plywood to recount some material. There was a discrepancy about the numbers. Ted said it wasn’t necessary since the material had already been counted twice. It was just a paper mistake. The boss did not agree and told Ted to use a forklift and dig out the material for recounting. Ted said, “I’m impaired and I’m not going to handle machinery right now.” That is where it ended. It turned out later that Ted was right, it was just a paper mistake.
 
After the inventory was done, a number of employees drank a beer prior to leaving.
 
At the end of the day on the following Monday, the boss placed a written warning on Ted’s desk with respect to his having been drinking during the inventory. Ted followed the boss to his office and asked him why he had given him a written warning without even discussing the matter with him before. The boss said he tried to impress upon Ted the significance of staff drinking during the inventory when there was still machinery to handle (although, apparently, there was no problem with feeding them a beer before they drove home).
 
Apparently, the discussion became heated and at one point Ted told the boss that he may have thought he was a hot shot but he was really nothing.
 
The next morning the boss hauled Ted back into his office and asked him to acknowledge that there was a safety concern with respect to drinking and operating machinery. Ted refused and was fired.
 
Ted sued for wrongful dismissal claiming that he should have been given pay in lieu of notice given his age, his management position and his nine years of service.
 
The employer claimed that there was just cause for Ted’s termination since he was a manager who drank during the inventory and was insubordinate to his boss. The judge found that Ted had historically been a good employee who performed his duties well. He had never received any significant criticisms before this final incident. The employer had condoned drinking in the workplace by providing the beer, although it was not meant for consumption until after the work was done. Ted was not the only management employee to drink during the inventory that day but he was the only one fired.
 
The judge indicated that while safety concerns should not be diminished, given that this was an isolated incident they should have given Ted a chance to correct his behaviour. A simple clear warning indicating that if it happened again Ted would be fired would have done the trick.
 
The reality is that Ted’s boss had only been on the job for two months, having been recently promoted. Ted refused to tow the line and the boss needed to prove, well, who was the boss.
 
Age, seniority and the level of authority an employee held are the most important factors in determining reasonable notice. At the age of 59, Ted was well into the age bracket where the courts will assume that it is more difficult to find new employment. As a manager, it is assumed that it is more difficult to find a management position than a non-management position since there are fewer of them around.
 
Ted won and was awarded twelve months pay in lieu of notice.
 
The point of this story for employers is this: when you have a long serving employee with no disciplinary history, you need more than one bad day to establish a reason to terminate an employee without a severance package.
 
Think of every year of good service banked as a credit upon which an employee can draw. Nobody is saying that the employer had to tolerate Ted’s lip or behaviour. But after nine and a half years of service, the least he deserved was a clear warning that if it happened again he would be losing his job.
 
If an employee, when confronted about bad behaviour, won’t acknowledge it, don’t worry about it. The employer sets the rules. Simply tell them in writing that if it happens again they’re gone. Insisting upon the employee bowing down and begging forgiveness is a mistake. What matters is not what they think but what they do.
 
As published in the Hamilton Spectator, October 19, 2009
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com