The BC Supreme Court recently reminded employers of the potential consequences of improperly handling a termination for just cause.  George v. Cowichan Tribes illustrates the care employers must take when investigating allegations of employee misconduct and when considering appropriate disciplinary sanctions.

Ms. George had been an employee of Cowichan Tribes in various positions for 30 years and at the time of her dismissal an Associate Executive Director position.  She was a valued senior manager with no previous performance issues or disciplinary history.  She was dismissed following an incident that occurred one evening while off duty at a local bar.  There was an altercation between Ms. George and another woman, Ms. Seymour.  Ms. George admitted that, while intoxicated, she had accosted Ms. Seymour and told her not to interfere with visits between Ms. George's grandchildren and their father whom Ms. Seymour was dating.  According to Ms. Seymour, Ms. George also threatened, slapped and insulted her.  Ms. George denied these allegations.

Ms. George was dismissed for cause for her conduct and for allegedly being dishonest about her conduct to her employer.

At trial the evidence came down to a credibility contest and the court ultimately preferred Ms. George's version of what had occurred.  The court found that this was an isolated incident, away from work, about a family matter, and was wholly out of character for Ms. George.  Accordingly, it did not justify summary dismissal.  Ms. George was awarded 20 months' pay in lieu of reasonable notice of termination.

The court also awarded aggravated damages of $35,000 to Ms. George because of the following conduct by the employer: 

  1. did not give Ms. George the opportunity to confront or respond to the allegations made against her, particularly the allegation of dishonesty;
  2. it did not give serious consideration to Ms. George's lengthy service and her exemplary discipline record; and
  3. it did not give serious consideration to whether there were measures short of dismissal that could have been imposed, particularly considering the employer's own human resources policy which contemplated a process of progressive discipline.

When determining whether there is cause to terminate an employee for misconduct, employers should always:

  • Put allegations directly to the employee being investigated, including allegations that the employee is being or has been dishonest.  The employee should not have to guess what is being alleged when trying to respond to questions; and
  • Consider all the circumstances, including an employee's lengthy exemplary work history, in determining whether the employment relationship is irreparably broken. 

Employers failing to fully investigate allegations of misconduct and consider all relevant circumstances before terminating an employee for cause take a significant risk of being subject to a large monetary award.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.