In Roe v. BC Ferry Services, the BC Court of Appeal recently clarified the right contextual approach for employers to take when determining whether an employee's misconduct is serious enough to constitute just cause for dismissal. The decision is encouraging for employers because it overturns a previous finding that a "relatively minor" breach of company policy falls short of just cause.
Mr. Roe was a senior manager, responsible for the Duke Point Ferry Terminal for over four years. An investigation revealed he had, on more than one occasion, knowingly given complimentary food and beverage vouchers (valued at $70 and $120 or $130) to his daughter's volleyball team without prior authorization and contrary to company policy. BC Ferries gave evidence of its policies, core values, and Code of Ethics, which were incumbent on managers like Mr. Roe to follow and to enforce. The Code of Ethics specifically required employees to avoid conflicts of interest with BC Ferries, with conflict of interest being defined as including "using corporate property, information, or position for personal benefit". Mr. Roe denied that he knowingly contravened what he characterized as an ambiguous policy, despite that he had used outdated vouchers that were untraceable.
The trial judge decided the case on summary judgment. The Court assumed for the purpose of analysis at trial that BC Ferries' version of Mr. Roe's alleged dishonesty was true, but nevertheless concluded that Mr. Roe's actions were "bordering on trifling" and did not amount to just cause for dismissal. The Court considered the value of the vouchers when assessing the seriousness of Mr. Roe's misconduct, finding: "the extent of the gain is very slight, bordering on trifling, although I accept that the plaintiff's position as a terminal manager, and the corresponding obligation to lead by example, is an aggravating factor."
The Court of Appeal rejected the trial judge's conclusion on the seriousness of the misconduct and concluded that the value of the vouchers was of little consequence. More important to the Court of Appeal were: (i) the high standard of conduct expected of Mr. Roe given the responsibilities and trust attached to his senior management position; (ii) the conditions of integrity and honesty in his employment contract, including the requirement in the Code of Ethics "to act in an honest and ethical manner at all times"; and (iii) the deliberate concealment of his actions which he later acknowledged to be wrong and unethical.
The Court of Appeal concluded that the trial judge had not properly applied the contextual approach and found that Mr. Roe's misconduct, when objectively viewed by a reasonable employer, rose to the level of undermining the obligations of good faith inherent in the employment contract.
This decision greatly assists employers in establishing conditions of integrity in the employment relationship and in acknowledging the seriousness of breaching those conditions. The Court of Appeal put significant weight on the responsibilities and trust inherent in the position, buttressed by policies with clearly stated expectations. When met with dishonest conduct by the employee, even conduct involving vouchers of relatively little value, the reasonable conclusion was that the employment relationship could no longer continue and the employer had just cause for dismissal.
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