Fired or not? The importance of clarity when terminating an employment relationship.
A recent appeal decision from the Employment Standards Tribunal, Dhindsa Law Corporation (Re) 2021 BCEST 20, illustrates some of the common pitfalls that can befall even sophisticated employers—like lawyers—when tempers rise.
In this case, the employer was a lawyer who discovered that his legal assistant had made a mistake. They argued, and the assistant left the office mid-day, saying she was “done.” She texted the lawyer later that night to ask if she should come to work the next day so they could talk. The next morning, when they met at his office, it became clear that the assistant’s employment was at an end.
The lawyer said that his assistant had quit the day they argued, when she told him she was “done” and left the office early. Because she had quit, and not been fired, he denied that she was owed any severance pay, or compensation for length of service.
The assistant took her case to the Employment Standards Tribunal to ask for severance pay. She agreed she had said she was “done,” but meant she was done listening to the lawyer, whom she felt had been abusive and degrading to her during their argument.
The Tribunal found that the assistant had been fired. The lawyer could not assume his assistant had quit just because she said something like “I’m done,” and left. It was just as likely that she needed time to cool off after their argument. The fact that she had texted him about coming to work the next day, and had left very personal items, like her children’s photos, at her desk, supported this conclusion.
The Tribunal also considered whether the assistant had been fired for “just cause.” When someone is fired for cause, the employer does not owe any severance pay.
A single case of misconduct can constitute just cause, but the conduct must be serious, deliberate, and intentional. It has to qualify as a “fundamental breach” of the employment contract—something so serious that it strikes at the heart of the relationship between employer and employee.
The lawyer provided evidence about his former assistant’s misconduct. A witness said that the assistant made a lot of mistakes, and was constantly on Facebook, or playing online poker. The witness also said the assistant made a lot of personal phone calls, up to several hours each day; and was constantly leaving early. The lawyer provided the Tribunal with browser logs, showing that his assistant had spent anywhere from 1 minute to 3.5 hours per day on unrelated websites. He concluded that the assistant had made a lot of mistakes because she was paying attention to the internet, not to her work.
The Tribunal found that the assistant’s recreational internet use was misconduct, which an employer is entitled to address. But in order to establish that minor misconduct rises to the level of just cause, an employer must have done all of the following:
(a)established a reasonable standard of performance and communicated that standard to the employee;
(b)provided the employee with sufficient time and a reasonable opportunity to meeting the standard;
(c) warned the employee that failure to meet the standard was serious and would result in termination; and
(d)shown that the employee still did not meet the standard.
The lawyer had not followed these steps. It seemed that the first time he raised the issue of his assistant’s internet use was at the same meeting in which she was fired.
What lessons can employers and employees draw from this case?
The first lesson is that resignations need to be extremely clear to both sides. A single argument, or an ambiguous comment like “I’m done,” is not enough. Rather, the employee has to both form the intention to quit, and do something inconsistent with continued employment.
In many situations, an employee might even say “I quit,” but not be found to have quit if they said it in anger, frustration, or as part of an emotional outburst. Employers should be extremely cautious about relying on “resignations” that are made in the heat of the moment.
Secondly, employers who are considering a termination “for cause” should ensure that they have given the employee multiple clear warnings, as well as time to fix the behaviour. Employers should keep (and follow) written disciplinary policies, and should keep records of any warnings or other disciplinary action.
Finally, both employers and employees may want to keep in mind the old adage that continuing a legal action “on principle” is not always the best course of action. This case, which involved both a hearing and an appeal, did not resolve in the lawyer’s favour. The result he was hoping to avoid? A payment of $640.63, plus 4% vacation pay, in compensation for less than a year of service.