Businesses have a right to determine the culture, values and codes of conduct at the workplace. Such values or workplace conditions may be established by having written codes or by practice over time. Employees who cannot comply with such codes may be let go. Where the employee consistently and deliberately refuses to comply with such codes, they may be terminated for cause. However, employers have an obligation to be consistent with enforcing its values.
In many cases, business managers decide to be lenient with employees who deliberately fail to observe fundamental values of the business. They may choose to overlook bad behavior from employees hoping that the employee will stop and refrain from such conduct in the future. Eventually, there may come a time that the lack of any disciplinary actions may lead the employee to believe that their actions were not objectionable. Ultimately, a manager who has bottled up complaints against the employee may unleash their disappointment and decide to fire the employee for cause.
Practically, it may seem like the employer had good reasons to fire the employee due to their relentless bad behavior over a long period of time. Unfortunately, the employer’s failure to discipline the employee in the past but then suddenly deciding to fire the employee may be a case of wrongful dismissal.
If an employer wishes to retain the right to dismiss an employee for bad behavior, it should consistently discipline such behavior, ideally on each case of apparent transgression by the employee. If the employer fails to do so, an employee may legitimately claim that such behavior was condoned. That may be the case even if the manager did not intend to condone it. And if such behavior was condoned in the past, an employer may not be permitted to terminate the employee for cause for similar behavior in the future.
A recent case from New Brunswick illustrates how inconsistent disciplinary actions against employees for bad behavior can be a serious problem for business. In Cumberland v. Maritime College of Forest Technology [2023] N.B.J. No. 136, the employee was a college instructor who was openly disrespectful to both his superiors and colleagues resulting in a poisoned workplace. He had also:
(i) prevented students from attending class because they were late;
(ii) intentionally adjusted the clock in the classroom ahead “to give the illusion that students were late;”
(iii) physically removed hats from students and confiscated them until they apologized;
(iv) made inappropriate and offensive comments in class;
(v) undermined the content of a seminar, and actively discouraged students from attending;
(vi) engaged in communication that constituted harassment and has caused
embarrassment and damage to reputation of the college.
The employer ultimately decided to terminate the employee for the above misconducts, who subsequently sued for wrongful dismissal.
The Court acknowledged that the employee had become a “disruptive and destructive force” within the college. The Court also acknowledged that the employee had become a very difficult person to have conversations with about his behavior. However, the Court found that the employer had an obligation to deal with his behavior prior to making the decision to dismiss, in accordance with the well-established principle of progressive discipline. Progressive discipline means that the employer must start with the lowest form of disciplinary action (e.g. written warning) and progressively move up to harsher punishments (e.g. a suspension) and terminate an employment as the last resort.
In other words, where an employer fails to bring the said misconduct to the employee’s attention, the employer is considered to have forgiven it and cannot rely on it for dismissal.
The rationale behind this legal principle is that the employer must give the employee an opportunity to rectify their behavior. A difficult employee may not utilize the notice and rectify their behavior. Rather, may just ignore complaints by a manager about such behavior. Nevertheless, the employer must give the employee a chance to rectify, failing which the employee will be given the benefit of the doubt.
The takeaway from the decision is that managers must consistently enforce policies against unacceptable behavior. This does not mean that managers need to rigidly enforce them. A manager can legally retain the discretion to show leniency or rigidity as they consider appropriate, so long as such steps are consistent with the employers’ policy know to the employee However, they must notify the employee in writing that they have committed a misconduct which may result in termination for cause in the future.
If you have been terminated for any ‘cause’ as an employee, or you are an employer considering cutting lose an employee for a potential “just cause”, two things are key: (1) involves a critical review of events that led up to the decision to terminate, and (2) involves an assessment of the ‘cause’ to see if it meets judicial considerations for ‘just cause’. At Osuji & Smith, we have experienced employment lawyers to help you navigate this review.
Author: Imtiaz Hafiz
