The HR Space is edited by Lyne Duhaime, Karen M.
Sargeant and Brian P. Smeenk.
In recent years there seems to have been an increase in the
frequency with which employees directly or publicly challenge their
supervisors or senior management. Perhaps this is due to an
increased awareness of their actual or perceived rights. Of course
employees have the right and should be encouraged to raise
legitimate workplace concerns, in appropriate circumstances.
However, recent decisions have confirmed that it is not acceptable
for employees to do so in a manner that is either disrespectful or
unfairly undermines management's integrity or reputation.
As a recent decision of the Supreme Court of British
Columbia confirms, when employees cross this line, it can provide
the basis for disciplinary action. In extreme cases, it can
result in termination.
In Grewal v. Khalsa Credit
Union, the relationship between the CEO and Ms.
Grewal, one of the credit union's branch managers, had become
strained. Grewal was a long service employee. While her performance
reviews were generally positive, she had been effectively demoted
on two occasions. The CEO had written to her on several occasions
about significant concerns with various aspects of her work.
Apparent irregularities with the renewal of Grewal's
personal mortgage then came to light. The CEO initiated an
investigation. Before she could be interviewed, Grewal went off
work on an unrelated leave of absence. The investigation continued
upon her return to work, ten months later.
After interviewing Grewal and before any disciplinary action was
taken, the CEO received a letter from her lawyer. In this letter,
Grewal's lawyer demanded a written apology. The letter demanded
formal acknowledgment that the CEO had acted in bad faith in making
baseless allegations regarding both the renewal of Grewal's
personal mortgage and her past performance issues. It demanded that
the CEO promise to refrain from such conduct in the future. It
asserted that the apology must be copied to both the
employer's board of directors and a government official, the
Deputy Superintendent of Credit Unions and Trusts. A second letter,
containing similar demands, followed a few days later. Grewal later
sued the Credit Union, alleging she had been wrongfully
While the court had some concerns regarding the quality of the
investigation into the renewal of the mortgage, it concluded that
an investigation was both appropriate and justified. It found the
allegations contained in the letters issued by Grewal's lawyer
to be baseless. They made the continuation of the employment
relationship untenable. The letters, when combined with
Grewal's past misconduct, were found to justify her being
dismissed for cause, despite her long service.
The court's decision turned not only on the contents of the
letters themselves, but the fact the employee's
counsel sent copies to the employer's board of directors
and the Deputy Superintendent of Credit Unions and Trusts. The
letters were found to be both disrespectful and inflammatory.
They constituted a deliberate effort to permanently damage the
Take-Away for Employers
It can be both difficult and time consuming to deal with
employees making allegations regarding inappropriate conduct on the
part of management. Employers must exercise great care in
responding to these concerns in a careful and considered fashion.
But they do not necessarily have to stand for employees who make
unfounded allegations of inappropriate conduct by management.
Nor must employers retain employees who choose (directly or through
lawyers) to express themselves in a manner that unfairly undermines
the reputation of the company or its management.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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