A recent decision of the BC Supreme Court went in favour of an
employee who was terminated by her employer for alleged conflict of
interest and breaches of policy. The court determined that there
was a lack of clarity, training and consistency in its policies and
procedures, and a flawed investigation: Ogden v. CIBC.
Ms. Ogden immigrated to Canada in 2000. She learned English and
earned a business degree from Royal Roads University. She went to
work with CIBC and built up a portfolio of $233 million working
with Chinese clients. She was consistently a top performer.
In the middle of one night in 2010, in an urgent situation, she
accepted a wire transfer of funds from China to her personal
account and then completed the transfer to the client's account
the next day. There was nothing hidden, no personal benefit to Ms.
Ogden, and it was done as the only way to get the funds necessary
to avoid the collapse of a house purchase by the client . Apart
from the funds being routed through Ms. Ogden's personal
account, the process of getting money from China was consistent
with bank practice.
The wire transfer incident came to light some six months later.
Ms. Ogden was forthcoming about what she had done. The court found
that Ms. Ogden had simply made an error in judgment and that the
employer did not give her a full opportunity to explain.
Ms. Ogden was terminated for just cause. The employer relied on
a few previous incidents for which it had given a final warning
after the wire transfer incident. The court concluded the
wire transfer incident could not establish a final incident for
cumulative cause, as it preceded the final warning Ms.
Ogden had received.
The employer also relied on its conflict of interest policy with
respect to the wire transfer. The court decided that there was no
breach of the conflict of interest policy and stated:
Where the employee's conduct is
the result of an honest mistake, an error in judgment, or the
result of a lack of training, the courts have stopped short again
and again from finding that cause – in such circumstances
– is warranted.
Intention here is key. Knowing that
the transaction was wrong is what connects the conduct to a trust
issue. Absent intention, the result is someone who exercised her
judgment and made the wrong call.
The court found that Ms. Ogden's career in financial
services was ruined and that she suffered emotional harm. It cited
"cavalier, insensitive and reckless" conduct by the
employer in its investigation and resulting termination of Ms.
Ogden and ordered damages for breach of contract and aggravated
damages to be assessed in another trial.
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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