When it comes to summary dismissal, every situation must be assessed based on all relevant factors
By Stuart Rudner
Even though I consistently remind clients and anyone else who will listen that summary dismissal is never “simple,” people often challenge me with cases that they portray as a “slam dunk.” The most common refrain is “Surely, if I catch an employee stealing, that is just cause for dismissal — right?” And my response is the lawyerly “It depends”; because our courts have made it clear that every situation must be assessed based on all relevant facts and not just the alleged misconduct.
I usually explain that when an employer is alleging it had just cause for dismissal, what it is really saying (eventually to a judge or arbitrator if the matter proceeds to a hearing) is that the relationship had been so fundamentally damaged it could not reasonably be expected to continue employing the individual in question. Usually, this comes down to a matter of trust; in light of all the circumstances, which include the nature of the individual’s position and duties, the misconduct, and their response when confronted (honest or otherwise), the trust was gone, and therefore summary dismissal was warranted.
Sixteen forged medical notes
So, when an employer discovers that an employee fraudulently filed 16 forged medical certificates justifying absences in less than a year, and then refused to acknowledge wrongdoing or apologize, and in fact attempted to justify her conduct by blaming her manager’s insistence that she provide notes to justify absences, you might think establishing just cause would be simple. Especially when you add in the fact that the forged notes allowed her to receive over 200 hours of sick pay plus more than another 200 hours of unpaid leave and that she had been spoken to and warned on several occasions that her absences were a concern.
As if often the case, however, the case (McNulty v. Canada Revenue Agency) was not as straightforward as the summary above would suggest. As I have discussed on many occasions (for example, The case of the tempting bagel, Summary dismissal cases complex, Unpredictable and Dismissal for cause never clear-cut), the contextual approach requires consideration of all relevant factors, which can include the employee’s length of service, past disciplinary issues, the nature of their role and degree of trust required, their response when confronted, and any mitigating circumstances.
In this case, the grievor had 25 years of service and had received several performance awards, including the “Award for Excellence” in 2010. Over the last few years of the grievor’s employment, however, concerns were raised regarding her frequent absences. The absences became more and more frequent, and on some occasions, she did not bother to report them. As a result, her manager gave her an “Administrative Conditions Letter” dated Feb. 20, 2013, setting out, in detail, the policies regarding attendance at work, absences, leaves, and the expectation of professional behaviour. As set out in the decision:
“Sylvest stated that on Feb. 20, 2013, she met with the grievor in her office and that they went through the provisions set out in the February 20th letter. She stated that the grievor was using a lot of sick leave, and she asked the grievor during that meeting if there was anything that she or the CRA could do to help. She said that the grievor told her that there were no issues and that the grievor assured her that she would be at work.”
Unfortunately, the absences continued, and the grievor’s manager began asking for medical documentation. Her evidence was that the grievor did not have them, and often made excuses such as stating that she left it at home. As the arbitrator summarized:
“Sylvest stated that despite the February 20th letter, she continued to be concerned about the amount of time the grievor was absent. She said that she would speak with the grievor and ask her if she was alright, if she needed anything, or if she would be in the next day or after a weekend, and she stated that the grievor would assure her that she would be in and then would be absent.
“Sylvest testified that she would ask the grievor if there was anything she or the CRA could do, because she was trying to see if there was something that was keeping the grievor from coming to work and whether the CRA could do something to alleviate the situation. The only thing that the grievor suggested was that it conduct an ergonomic assessment, so in July of 2013, one was conducted.”
The employer became suspicious of the medical certificates provided and met with the grievor. The notes of the meeting include the following:
“Mary Ann justified the forging of notes given the fact that when she was absent she was too drunk to drive to the doctor’s office to get a note — Her words were to the effect of ‘You would not want me to drive drunk…’ Mary Ann revealed that she had been treated in the past for alcohol abuse and had been sober for a number of years. Her resumption of alcohol abuse started again (about two years ago) when members of her family became ill.”
The evidence from those at the meeting was that the grievor “showed no remorse and at times appeared to deflect the blame from herself to others, such as her manager for requiring her to produce medical certificates, and that she avoided responsibility by stating: ‘You would not want me to drive drunk.’” The grievor offered many justifications for her behaviour; as the arbitrator found:
“Subsequent to the disciplinary hearing, but on the same day, the grievor returned to see Mr. McKenzie, to provide him with further information, which he then set out in an email to Mr. Quesnel, also on that same day, as follows: ·
• it had not occurred to the grievor that forging the medical notes was fraudulent
· she stated that fraud occurred every day at the CRA, with employees taking long breaks
· her brother had died
· her sister had suffered a serious illness
· her uncle had died
· her mother was in declining health
· she had always been a good employee
· she had worked on the GCWCC and had received the award for excellence
· the 16 or 17 instances of fraud were not indicative of her career as a public servant
· she did not want to lose her job as she needed it to support herself and her child.
“Mr. McKenzie set out in that email and in his evidence before me that the grievor did not apologize or acknowledge that she was accountable for her actions.”
The evidence at the hearing, and the decision, are extensive (the decision is over 200 paragraphs). However, for purposes of this blog post, my intent is to convey that even a seemingly simple situation (“employer forged 16 medical notes”) can become complicated very quickly. In this case, the grievor claimed to have an addiction to alcohol and alleged that was the cause of her frequent absences. As a result, the employer and the arbitrator had to consider human rights and the duty to accommodate and assess any impact that might have on the decision to dismiss.
Never act too hastily
Unfortunately, on many occasions, I am consulted by employers that fail to take the time to determine and assess all relevant factors; they find out that an employee did something wrong, and they deem it to be so egregious that it warrants summary dismissal. It is only later (often after I press them) that they acknowledge the other relevant factors. In some cases, those factors will be the difference between a finding that summary dismissal was warranted and a finding that it was too harsh.
And if they have already dismissed the employee, they may be facing substantial liability and costs (far more than if they had simply dismissed the employee without cause and offered a severance package).
The conclusion: “Just cause is not a lost cause”
The threshold for summary dismissal — the “capital punishment of employment law” — is high, and judges and arbitrators will often try to protect employees from such a harsh result. However, as I often say, “Just cause is not a lost cause”; in the case discussed above, the arbitrator found that there was no medical evidence that a disability caused the grievor to forge the notes and therefore the dismissal did not trigger a breach of her human rights.
Furthermore, the arbitrator found that the grievor’s dishonest conduct and her refusal to accept responsibility or acknowledge wrongdoing warranted summary dismissal despite her lengthy service. Seems like the right result, but the employer still had to expend lots of time and money defending the decision.
