In an adjudication under the Unjust Dismissal section of the Canada Labour Code, Arbitrator Allan Kaufman decided in Navaneethakrishnan v Bell Mobility ( YM2707-10699) ( 2017 CarswellNat 1825) as whether a single act of insolence constituted just cause.
The Employee was called into a meeting to be told that she was being promoted, but not to the job that she had hoped for. The employee was not a happy camper.
In the course of that meeting with her boss she said the following things:
7 This meeting of May 11, 2016 then went downhill. According to an e-mail that Luca sent to Tomassina in HR later that same day, the employee stated during that meeting with Luca that:
• “Marco and Luca do not know how to lead”;
• “Luca’s group have the absolute worst reputation”;
• “Luca does not have a clue when it comes to budgeting”;
• “I have zero respect for you(Luca) and Marco – zero.”
• “Luca never stood up for the team and gave her zero support”;
• “I’m way too smart for this, I studied Finance, I did my CFA, I’m way too smart.” At which point she unilaterally walked out and ended the meeting with her boss, Luca.
Luca was her boss and Marco was the boss of Luca.
The Adjudicator was not impressed with the Employee’s conduct :
18 I regard this conduct on the part of the employee, if true, as being very serious, since was accusing her immediate boss, and his boss, of not knowing how to lead, and of basically being incompetent. After all, there are not too many worse comments that an employee can hurl at her boss’ face than what this particular employee was alleged to have said. Fortunately for the employee, there was nobody else in the meeting room who heard her comments, except Luca. Yet he was her immediate boss and she is alleged to have said these things directly to his face.
19 At the Hearing, the employee denied making most of the above quoted statements during the May 11th meeting. Whereas Luca testified that all of those quotes were accurate. I tended to believe Luca’s version of those events…
However the Adjudicator found that the employee was entitled to a warning before a termination for just cause could be upheld. I have no problem with that finding.
However, the Adjudicator went on to find that two of the Employer’s actions also contributed to his finding that the employment relationship was not totally severed.
1. Before termination, Bell wrote the employee a letter.
5. However, the main problem for the employer is that the employer’s own letter of termination dated May 17, 2016 suggests that the employment relationship had not been totally severed between the parties. This is evidenced by the fact that the employer took the highly unusual but very generous step of writing in its letter of termination to her dated May 17, 2016 that if she could come forward and advise the employer of any adverse medical condition or other personal issues in her life that might have explained her outburst during the May 11th meeting, the employer would consider re-hiring her. I believe this to have been a most generous gesture on the part of the employer. However, it served at the same time to undermine the employer’s legal argument that the employment relationship between the employee and the employer could not subsist. If the relationship was completely irreparable, as the employer contended before me at the Hearing, how could the employer have offered in its letter of termination to even consider the possibility of taking her back to work? Yet the employer did so.
The answer to the adjudicator’s question is obvious. If in fact her outburst had a medical basis then this would trigger a duty by Bell to accommodate her under human rights legislation. Surely the Employer’s legitimate and arguably legally required inquiry should not be held as evidence against the employer.
2. The Employer paid the employee three weeks termination pay .
6. The employer’s own letter of termination dated May 17, 2016 also contained the unusual step of paying the employee the statutory two week notice of termination pay under the Canada Labour Code, plus two weeks of continuing coverage under the employer’s medical plan. In addition, not only did the employer pay to her that two weeks’ pay, but it also paid her a third week of pay following her termination – up to June 5, 2016. I view all of this as “unusual”, since if the employer was taking the position in its letter of termination that it was terminating the employee for cause, I would not have expected the employer to have paid her three weeks’ pay thereafter – or any other amount for severance pay. It was almost as if the employer – while asserting at the Hearing before me that it had cause to terminate the employee – did not fully believe it, as reflected by its conduct at the time of the dismissal.
The effect of this thinking is to reward employers who treat dismissed employees cheaply ( paying then nothing by way of termination pay ) and to punish those employers who chose to pay a dismissed employee some minimal termination pay, even when they have alleged just cause.
Moreover the issue of whether the employer believes they have or do not have cause should be irrelevant.
Just cause is a matter of law. It is not based the opinion of the parties.
In almost every mediation I have regarding the issue of just cause, one party feels strongly that there is just cause and the other that there is not.
I only care about predicting the opinion of one person. The judge.