Employees need to understand that this is an opportunity to salvage the relationship
By Stuart Rudner
Employees who are being
investigated for misconduct need to understand that lying will only hurt their
cause and make it more likely they will be dismissed. In many cases, the
employee's honesty, or lack thereof, will make the difference between just
cause for dismissal and some lesser penalty.
On many occasions, I have
written about the law of summary dismissal, and our courts have been clear in
saying any misconduct is not to be considered in isolation, but to be assessed
in the context of all relevant circumstances. This contextual approach requires
that employers consider factors such as the employee’s length of service, prior
disciplinary history, the nature of her position within the organization, and her
response when confronted with the allegation.
In the course of drafting my
textbook, You're Fired! Just Cause for Dismissal in Canada, as well as
preparing the bi-annual updates, I have reviewed thousands of cases where
courts and arbitrators have assessed whether an individual deserved to be
fired. One observation I have made is the employee's response when confronted
has become a critical factor. All else being equal, it is far more likely an
employee who is honest about the misconduct and offers some indication of
mitigating factors will get a second chance, whereas an employee who lies about
his misconduct and makes efforts to cover it up only compounds his mistake.
Ultimately, in assessing
whether just cause for dismissal exists, employers, courts and arbitrators are
considering whether the employment relationship has been damaged beyond repair.
Trust is a fundamental factor in this assessment, and an employee who is
dishonest in the course of an investigation will provide further evidence she
is untrustworthy and the employer should not be expected to continue to employ her.
Employees need to understand
that when they are confronted with allegations of misconduct, that is their
opportunity to salvage the relationship. Of course, if they are not guilty,
they should not say otherwise. However, if they are, or if there is even some
truth to the allegation, they will be far better off if they are honest and
provide an explanation for their conduct, rather than deny it altogether.
By way of example, the employee
might mention relevant mitigating factors, such as ongoing family or marital
problems, addiction, physical or psychological illness, or anything else that
caused him to behave the way he did. It should go without saying they should
not manufacture such excuses, but should mention them if they exist.
Unfortunately, it is remarkable how often individuals engage in one uncharacteristic instance of misconduct, and then miss the chance to get the employment relationship back on track by responding dishonestly when confronted, destroying any remaining trust that the employer may have had in them.
