Revising history to claim just cause can cost the employer

A man we will call Willy worked at an auto body shop as a technician for four years and then left to pursue another opportunity. Four years later, he got a call from his old employer. They were opening a new location. They told him that if he came back to the company he would have an opportunity to become a supervisor and participate in profit sharing. He accepted the invitation and a year after he went back he was promoted to foreman.
 
Auto body mechanics being the hobbyists that they often are, most of them had their own projects. It was also accepted that if things were a bit slow in the shop and it did not interfere with customer work, they could spend some time working on their own vehicles. It happened routinely.
 
36 months after he came back to work for his old employer,  Willy brought some wheel rims into the shop and asked a technician that worked for him to sand the rims and another employee to paint them.
 
It would appear that at least some of the work, or most of it, took place during the lunch hour. Willy’s boss became aware of the project but said nothing. Two weeks later, the boss terminated Willy’s employment and, Willy says, told him he could no longer afford him. He gave him a cheque for three weeks pay in lieu of notice.
 
When Willy questioned the termination and the amount of severance he had been provided, the boss told him that he wanted to keep him happy and he might give him another week.
 
A few days later, Willy told the boss he was not happy with the severance amount and that he was going to talk to a lawyer.
 
Suddenly, the boss got angry. He called the police department and he and two other employees filled out witness statements accusing Willy of stealing company resources by  having the employees sand and paint his rims two weeks before. Willy sued to get more pay in lieu of notice and the boss claimed at trial that he had just cause to terminate Willy because of the wheel rim incident.
 
The boss told the judge that he never said anything to Willy on the day that the wheel rim work was done because he was waiting for Willy to come to him with an explanation or apology. When asked why, if he thought there was just cause for terminating Willy’s employment without notice, he had given him three weeks pay, he said it was just a good will gesture.
 
It’s amazing will expect a judge to believe a lie, even when it does not make sense. Given that the boss accused Willy of being a thief and tried to get him criminally charged, it does not make sense that he would have felt any “good will” whatsoever towards Willy.
 
His explanation about not challenging the wheel rim work on the day it happened is equally nonsensical. If an employee does something that is so horrendous that it might constitute just cause, and I’m not saying Willy did, you can’t sit around mulling it over for a couple of weeks. If the behaviour is significant enough to call for a termination of the relationship without severance, then it needs to be acted on very quickly or else the employer will have condoned it. Who lets somebody they actually think is a thief keep running their auto body shop of two weeks?
 
The judge saw through the boss’s lies before they were even out of his mouth.
 
Although Willy only worked for the employer for 36 months after he returned to their employ, the judge found that he had been induced to leave secure employment to take that job. The promise of profit sharing and a supervisory role at a time when Willy was not even looking for a new job meant that the employer took on responsibility for the four years of service Willy left behind to return to the company. Willy was awarded five months pay in lieu of notice and the lying boss got to pay Willy’s legal costs as well as his own.
 
Employers who allege just cause on dubious grounds run the risk of irritating the judge. Judges have a significant amount of discretion as to how much pay in lieu of notice they can order. A judge who feels she has been lied to will likely use that discretion to punish the behaviour and award a higher notice. The kind of historical revisionism engaged in by this employer usually backfires…and it did.
 
As published in the Hamilton Spectator, May 3, 2010
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com