A recent case before the Manitoba Court of Queen’s Bench provides employers an example of how not to terminate an employee for cause and offers insights into what evidence courts will require to support a decision to fire an employee.
In Kitcher v. Royal Canadian Legion, Norwood & St. Boniface Branch No. 43, Sarah Kitcher was a bar steward who had worked for the legion for more than 16 years. She was fired by the legion on Nov. 1, 2001, because she allegedly:
•failed to perform her duties by providing inadequate service to members and patrons;
•was insubordinate to her supervisors and was guilty of willful misconduct after dismissal;
•failed to maintain accurate records of hours worked; and
•misled her employer with respect to the percentage of her entitlement to vacation pay.
But the legion didn’t have a lot of facts to back up those charges to defend the wrongful dismissal suit brought by Kitcher.
For the first charge, failure to perform her duties, the legion had a policy whereby any complaints made about an employee were to be submitted in writing. During her tenure, it had received only one such complaint about Kitcher and it was because she let a customer get only $200 cash back from an Interac purchase instead of the $400 he was requesting, as per legion policy. Other employees testified she was a hard worker and performed her duties.
The second charge, insubordination and willful misconduct after dismissal, stemmed from an incident where Kitcher got into an argument with the office bookkeeper over a $30 shortage in the cash register. Bar stewards were responsible for monies collected in the cash register. When the tally didn’t balance, the bookkeeper would review the documentation, count the cash and attempt to find the error. If the reason for a shortage could not be identified, the bar steward was personally responsible to pay the difference and was so advised by the bookkeeper, usually within one to two days of the occurrence.
The $30 shortage happened on Sept. 14, 2001, but Kitcher wasn’t approached about it until Oct. 19, 2001. Kitcher wanted evidence from the bookkeeper about how the shortage happened and where it occurred, but the bookkeeper was unable to provide an answer. A heated conversation took place at the bar that left the bookkeeper feeling embarrassed and humiliated.
The second incident of insubordination centered around a number of phone calls placed by Kitcher to another employee at the legion about the shortage. That employee alleged Kitcher was rude and yelling during the conversations. The court found Kitcher’s behaviour to be rude, but that it did not amount to insubordination because, in both cases, she was talking to fellow employees and not her employer.
The legion further alleged that, after being fired, Kitcher filed a complaint against one of the employees with the provincial command of the legion simply as an act of deceit and an intentional attempt to seek retribution. Lawyers for the legion argued Kitcher’s post-dismissal conduct supported a conclusion that she willfully misconducted herself in her relations with the legion before her dismissal.
They cited the case of Walerius v. McDiarmind Lumber Ltd., where an employee, after being fired, telephoned other employees to convey false information. This was held to amount to serious misconduct, incompatible with his duty as a manager. The court determined this conduct after dismissal cast new light on the employee’s earlier misconduct, thereby enabling the trial judge to find the employee was incapable of discharging his duties properly.
But the judge said the facts in Kitcher differed, and the post-dismissal complaint in this case was not relevant to the earlier dismissal. For the charge of failing to maintain accurate hours of work, the legion had a long-standing practice of tolerating employees who frequently failed to punch in and punch out when starting and finishing shifts. In fact, Kitcher once specifically asked if it was a problem and was told it was not.
The last charge, misleading the legion about the amount of vacation pay she was entitled to, was also thrown out by the court. Based on the legion’s bylaws in 2000, Kitcher told the payroll officer she was entitled to eight per cent vacation pay since she had been on the job for 15 years. But the legion took the position that the bylaw only applied to salaried employees, and not hourly ones. In 2001 the legion changed the bylaw to apply only to salaried staff.
The court found Kitcher had been wrongfully dismissed and awarded her 10.5 months’ notice plus vacation pay. She was also seeking Wallace damages for intentional infliction of mental suffering for the way the dismissal was handled, but the court refused to extend the notice period.
Dismissal for cause
Courts have developed a common-law doctrine of just cause that emphasizes safeguarding the personal dignity and autonomy of the employee. This doctrine reflects the following requirements when it comes to dismissal for cause:
•the decision to dismiss a worker must be taken in good faith, non-arbitrarily and without discrimination;
•proportionality, which means that the ultimate sanction of dismissal can only be invoked for conduct on the employee’s part that causes a substantial harm to the employer’s interests;
•relatively stringent standards of “procedural fairness” on the employer as a pre-condition to dismissal; and
•affording the non-unionized employee roughly equal protections under the common-law doctrine of just cause as are available to unionized workers under the just-cause provision found in most collective agreements.
Just cause based on incompetence
Where the employer alleges just cause based on the incompetence, the employee’s quality of performance must demonstrably fall below the average level for the firm or business, Justice Duval wrote in his decision. In cases involving dismissal for incompetence, the courts have held that the following corrective measures must normally be taken prior to invoking dismissal:
•the employer has clearly made known to the employee the requisite standards of job performance;
•the employer has clearly warned the employee at the time exactly how she has failed to meet the requisite standard;
•the warning has clearly and unambiguously indicated that the employee’s job is in jeopardy; and
•the employee has been clearly informed of what is required to constitute satisfactory performance and has been given a reasonable opportunity to improve pursuant to specified deadlines.
Courts have also taken into account surrounding circumstances that reduce the severity of an employee’s misconduct or incompetence. Mitigating factors have been held to include:
•provocation, or other mistreatment of the employee by the employer;
•a lengthy record of satisfactory service;
•lack of intent to harm the employer; and
•any other reasonable excuse.
For more information see:
• Kitcher v. Royal Canadian Legion, Norwood & St. Boniface Branch No. 43, 2003 CarswellMan 471 (Man. Q.B.).
• Walerius v. McDiarmid Lumber Ltd., 2000 CarswellMan 247 (Man. C.A.).
In Kitcher v. Royal Canadian Legion, Norwood & St. Boniface Branch No. 43, Sarah Kitcher was a bar steward who had worked for the legion for more than 16 years. She was fired by the legion on Nov. 1, 2001, because she allegedly:
•failed to perform her duties by providing inadequate service to members and patrons;
•was insubordinate to her supervisors and was guilty of willful misconduct after dismissal;
•failed to maintain accurate records of hours worked; and
•misled her employer with respect to the percentage of her entitlement to vacation pay.
But the legion didn’t have a lot of facts to back up those charges to defend the wrongful dismissal suit brought by Kitcher.
For the first charge, failure to perform her duties, the legion had a policy whereby any complaints made about an employee were to be submitted in writing. During her tenure, it had received only one such complaint about Kitcher and it was because she let a customer get only $200 cash back from an Interac purchase instead of the $400 he was requesting, as per legion policy. Other employees testified she was a hard worker and performed her duties.
The second charge, insubordination and willful misconduct after dismissal, stemmed from an incident where Kitcher got into an argument with the office bookkeeper over a $30 shortage in the cash register. Bar stewards were responsible for monies collected in the cash register. When the tally didn’t balance, the bookkeeper would review the documentation, count the cash and attempt to find the error. If the reason for a shortage could not be identified, the bar steward was personally responsible to pay the difference and was so advised by the bookkeeper, usually within one to two days of the occurrence.
The $30 shortage happened on Sept. 14, 2001, but Kitcher wasn’t approached about it until Oct. 19, 2001. Kitcher wanted evidence from the bookkeeper about how the shortage happened and where it occurred, but the bookkeeper was unable to provide an answer. A heated conversation took place at the bar that left the bookkeeper feeling embarrassed and humiliated.
The second incident of insubordination centered around a number of phone calls placed by Kitcher to another employee at the legion about the shortage. That employee alleged Kitcher was rude and yelling during the conversations. The court found Kitcher’s behaviour to be rude, but that it did not amount to insubordination because, in both cases, she was talking to fellow employees and not her employer.
The legion further alleged that, after being fired, Kitcher filed a complaint against one of the employees with the provincial command of the legion simply as an act of deceit and an intentional attempt to seek retribution. Lawyers for the legion argued Kitcher’s post-dismissal conduct supported a conclusion that she willfully misconducted herself in her relations with the legion before her dismissal.
They cited the case of Walerius v. McDiarmind Lumber Ltd., where an employee, after being fired, telephoned other employees to convey false information. This was held to amount to serious misconduct, incompatible with his duty as a manager. The court determined this conduct after dismissal cast new light on the employee’s earlier misconduct, thereby enabling the trial judge to find the employee was incapable of discharging his duties properly.
But the judge said the facts in Kitcher differed, and the post-dismissal complaint in this case was not relevant to the earlier dismissal. For the charge of failing to maintain accurate hours of work, the legion had a long-standing practice of tolerating employees who frequently failed to punch in and punch out when starting and finishing shifts. In fact, Kitcher once specifically asked if it was a problem and was told it was not.
The last charge, misleading the legion about the amount of vacation pay she was entitled to, was also thrown out by the court. Based on the legion’s bylaws in 2000, Kitcher told the payroll officer she was entitled to eight per cent vacation pay since she had been on the job for 15 years. But the legion took the position that the bylaw only applied to salaried employees, and not hourly ones. In 2001 the legion changed the bylaw to apply only to salaried staff.
The court found Kitcher had been wrongfully dismissed and awarded her 10.5 months’ notice plus vacation pay. She was also seeking Wallace damages for intentional infliction of mental suffering for the way the dismissal was handled, but the court refused to extend the notice period.
Dismissal for cause
Courts have developed a common-law doctrine of just cause that emphasizes safeguarding the personal dignity and autonomy of the employee. This doctrine reflects the following requirements when it comes to dismissal for cause:
•the decision to dismiss a worker must be taken in good faith, non-arbitrarily and without discrimination;
•proportionality, which means that the ultimate sanction of dismissal can only be invoked for conduct on the employee’s part that causes a substantial harm to the employer’s interests;
•relatively stringent standards of “procedural fairness” on the employer as a pre-condition to dismissal; and
•affording the non-unionized employee roughly equal protections under the common-law doctrine of just cause as are available to unionized workers under the just-cause provision found in most collective agreements.
Just cause based on incompetence
Where the employer alleges just cause based on the incompetence, the employee’s quality of performance must demonstrably fall below the average level for the firm or business, Justice Duval wrote in his decision. In cases involving dismissal for incompetence, the courts have held that the following corrective measures must normally be taken prior to invoking dismissal:
•the employer has clearly made known to the employee the requisite standards of job performance;
•the employer has clearly warned the employee at the time exactly how she has failed to meet the requisite standard;
•the warning has clearly and unambiguously indicated that the employee’s job is in jeopardy; and
•the employee has been clearly informed of what is required to constitute satisfactory performance and has been given a reasonable opportunity to improve pursuant to specified deadlines.
Courts have also taken into account surrounding circumstances that reduce the severity of an employee’s misconduct or incompetence. Mitigating factors have been held to include:
•provocation, or other mistreatment of the employee by the employer;
•a lengthy record of satisfactory service;
•lack of intent to harm the employer; and
•any other reasonable excuse.
For more information see:
• Kitcher v. Royal Canadian Legion, Norwood & St. Boniface Branch No. 43, 2003 CarswellMan 471 (Man. Q.B.).
• Walerius v. McDiarmid Lumber Ltd., 2000 CarswellMan 247 (Man. C.A.).
