Canada: Is A Disrespectful And Inflammatory Letter Enough To Terminate?

An employee, unhappy with her employer's criticism of her performance at work, retains legal counsel to write a letter on her behalf, demanding that the employer retract statements made about her and issue an apology. The letter threatens legal action if an apology is not provided. Does the letter constitute a resignation if the apology is not provided? If not, is the employer entitled to terminate the employee's employment for cause? These questions were considered in the decisions of the BC Court in Grewal v. Khalsa Credit Union, 2011 BCSC 648; affirmed 2012 BCCA 56.

The employee commenced employment as a teller at the employer credit union in 1989. By 1999, the employee had moved up through the ranks of the employer and had become the Vancouver branch manager. Shortly thereafter, the employer raised concerns about breaches of the employer's policies and procedures by the employee, noting to the employee that such breaches were not acceptable and resulted in a loss of trust concerning the employee's ability to carry on with her current position. The employee was then moved to the Abbotsford branch, a reassignment considered to be a demotion. The employee continued working for the employer credit union until October 2005, when she went on disability leave. She remained off work until August 2006.

In the years following the employee's reassignment from the Vancouver branch and prior to the disability leave, the employer's CEO wrote to the employee on several occasions, criticizing aspects of her work. A number of issues were raised including "the failure of staff to wear nametags, giving preferred rates on certain loans, failure to spin locks at the end of the day, failure to advise head office of a search warrant, failure to advise head office of the attendance of a FICOM investigator at her branch, late attendance at her office, failure to have regular staff meetings, and arriving late and being disrespectful at a head office staff meeting." The employee, upset by what she viewed as unwarranted criticism, sometimes responded in writing to the criticisms. The employer's CEO considered certain responses to be insubordinate and disrespectful. The employee also complained about violations of her privacy but refused, when asked by the employer, to provide particulars or sources of the allegations being made.

Shortly before the employee went on disability leave, the employer identified irregularities about the employee's mortgage on her home from the credit union and its renewal. The employer took steps to arrange a meeting with the employee regarding its concerns but, before the meeting could take place, the employee went on disability leave. On several occasions during the disability period, the employer wrote to the employee requesting the opportunity to communicate regarding the mortgage concerns and, noting that the employee was on leave, suggested various means of proceeding. A meeting ultimately took place within a couple of days following the employee's return from disability leave. On the day following the meeting, a letter was delivered by the employee's legal counsel to the employer's CEO (the "First Letter"). The First Letter alleged that there had been "serious unwarranted invasions of our client's privacy, done by [the CEO] or at [the CEO's] direction". The First Letter further suggested that the employer's CEO had levelled petty complaints against the employee as a pretext to discipline and dismissal. The First Letter then stated:

We demand that within 21 days from the date of this letter you issue a written apology to [the employee] acknowledging that your actions in going to the board of directors, testifying on oath at the FICOM hearing, levelling this untrue accusation of a mortgage scandal at her and repeatedly making baseless allegations of performance failures in her job as a manager were done by you in bad faith with the intent of injuring [the employee] and her reputation. You must promise to refrain from any and all such conduct in the future. Clearly, you will need to obtain legal advice in resolving this very serious matter. As [the employee's] solicitors we will want to review the apology letter in order to ensure that it addresses all of our client's concerns regarding her mistreatment at your hands. This letter must be addressed to our client and copies provided to the board of directors of the credit union and to [the] Deputy Superintendent of Credit Unions and Trusts.

In the event that we receive a timely apology which is satisfactory to our client we have instructions to release you and the credit union from liability for this tortuous conduct. If you choose not to apologize we will commence an action against you and the credit union seeking compensatory and punitive damages.

The First Letter was copied to the employer's board of directors and to B.C. Deputy Superintendent of Credit Unions and Trusts. The employer did not respond to the First Letter. Several days thereafter, the employee's lawyer sent the employer's CEO a further letter which did not resile from any of the positions taken in the First Letter (the "Second Letter"). The employer responded to the Second Letter, advising that there would be no apology and noting the issues that it had had with the employee's performance. The employer's letter concluded that the employee had acted in a manner inconsistent with her employment and that she had thereby severed the employment relationship.

At trial, the Court characterized the First Letter as "disrespectful and inflammatory" with accusations that were "serious and covered most of her working relationship". The Court noted that the First Letter demanded that her superior, the employer's CEO, acknowledge that he had acted in bad faith with the intent to injure the employee and her reputation. The Court also noted that the First Letter demanded that the CEO apologize in a manner acceptable to the employee's legal counsel and that the CEO had to refrain from future criticism of her performance.

Despite the Court's comments about the First Letter, the Court held that the First Letter did not constitute a resignation by the employee. In doing so, the Court reaffirmed that a resignation by an employee must demonstrate a "clear and unequivocal intention to end the employment relationship". The Court did, however, find that the First Letter, when coupled with the employee's performance history, tipped the balance and entitled the employer to terminate the employee for cause. In reaching this conclusion, the Court also noted that the history of insubordination (which included copying correspondence to the CEO's secretary, even after she was told not to do so, and failure to fully disclose the information that was known to her regarding her mortgage during the employer's investigation) alone would not have justified her termination. In considering the impact of the First Letter, the Court held that the letter could not be considered in a vacuum and had to be considered in the context of the employee's history with the employer credit union. The First Letter was viewed by the Court as the culmination of a litany of ongoing difficulties in the employment relationship.

The Court concluded by noting that the employee was a branch manager and was therefore in a position of trust and responsibility. Given her role with the employer, it was essential that the employee retain the confidence of her superiors in order to perform her duties. The Court held that the First Letter permanently undermined the employment relationship and made it impossible for the employer's CEO and the employee to work together. Under these circumstances, the First Letter constituted just cause for dismissal.

What can employers take from this case?

  • The standard for termination for just cause remains a high one. In this case, a history of ongoing difficulties in the employment relationship would not have, in and of itself, justified a termination. At the same time, the First Letter alone would not have provided the basis for dismissal for cause. Rather, it was the combined effect of the First Letter, the employee's history with the employer and her senior position with the employer that resulted in a finding that the employment relationship was no longer tenable from the employer's perspective.
  • An employer should proceed carefully in investigating allegations against an employee and should give the employee an opportunity to respond. In this case, the employer, which had not completed its investigations, would not have had grounds for termination merely based on its concerns about the circumstances surrounding the employee's mortgage.
  • The Court will only find that an employee has resigned where the employee has expressly communicated his or her intention to do so. A letter issuing a demand to the employer that the employer apologize or legal action would be taken will not be held by the Court to evidence such an intention.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions