Can an employer justify an employee's dismissal for acts
committed after he or she has been fired?
The answer is: sometimes. In Gillespie v. 1200333 Alberta
Ltd. (PDF), an Alberta court
overturned a lower court ruling that permitted an employer to
retroactively justify an employee's termination on the basis
that the employee removed confidential documents from the office
upon her termination. The question on appeal was whether the
employee's post-termination conduct was sufficient to limit the
employer's obligation to provide reasonable notice or pay in
lieu of such notice.
Bonita Gillespie was an Occupational Therapist with 1200333
Alberta Ltd. ("PCN") for about a year when she was
reprimanded and ultimately fired for a series of verbal
altercations with co-workers. She was provided with two weeks
pay in lieu of reasonable notice and instructed to clear her desk
and vacate the office immediately. In packing her personal
items, Ms. Gillespie took a number of letters containing personal
information of some of her patients. They contained
complimentary statements patients had made about Ms. Gillespie
while she was employed with PCN.
After Ms. Gillespie complained about the amount of pay provided
in lieu of reasonable notice, PCN took the position that the
post-termination act of taking confidential information out of the
office amounted to theft of company property, constituted cause for
dismissal and meant she was entitled to nothing.
The trial judge decided that two weeks notice was reasonable and
denied Ms. Gillespie's claim. The judge was of the view
that while Ms. Gillespie was initially terminated without cause,
the post-termination act of removing confidential documents from
the office was a breach of her Non-Disclosure Agreement
("NDA"), which prejudiced PCN's ability to properly
conduct its business.
Appeal Court Overturns Ruling
On appeal, Justice Ross reversed the trial judge and awarded Ms.
Gillespie four month's salary and benefits. The judge
stated that there are limits on when post-termination conduct can
be relied upon to establish grounds for dismissal and disagreed
with PCN's assertion that Ms. Gillespie's post-termination
conduct further demonstrated that her interpersonal issues made her
unsuitable for the position.
Instead, the judge said that the appropriate remedy for the NDA
breach was for PCN to claim civil damages against Ms. Gillespie,
submit a complaint to the appropriate professional disciplinary
body or bring proceedings against Ms. Gillespie under privacy
legislation. The judge concluded that "there are other
ways to enforce the [NDA] that do not involve the illogic and
unfairness of permitting an employer to retroactively justify the
repudiation" of the employment contract. Given that this
is an appeal court ruling, it may have ramifications throughout the
rest of the country.
Take Away for Employers
PCN terminated Ms. Gillespie because of her personality, which
in this case did not constitute just cause for dismissal. PCN's
reliance on post-termination conduct might have been successful if
the post-termination behaviour was related to and supported the
reasonableness of the dismissal. Because it was not, Ms.
Gillespie's post-termination theft of confidential information
did not eliminate her entitlement to pay in lieu of reasonable
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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