Canada: Don’t Expect A Slap On The Wrist For Serious Misconduct In The ‘Real World’

Last Updated: July 16 2014
Article by Howard Levitt

"It takes many good deeds to build a good reputation, and only one bad one to lose it."
—Benjamin Franklin

In the context of one's career, quite apropos.

Reckless incorrigibility abounds. One need only glance at the headlines of the National Post on June 27. Therein, a laundry list of workplace improprieties committed by RCMP officers in the last year alone.

Despite their position as role models and custodians of the law, what is exhibited? Sex in cruisers, lying under oath, assault, drunk driving while on duty; a mere sampling of officer misdeeds now subject to investigation and internal disciplinary hearings.

Most cases resulted in a reprimand of some kind and the loss of days' pay. One constable was docked four days' pay for "improper use of a police vehicle to engage in consensual sexual acts with a fellow RCMP member."

But this coddled disciplinary approach by the RCMP, like their civil service fellows, bears scant resemblance to the rest of us. Misconduct, including assault and drinking while driving for work, represent serious misconduct — a single instance of which might be sufficient to justify termination for cause.

Contrary to the RCMP's approach, there has been a marked shift in how private employers deal with transgressing employees. In the last year, more employers and employees than ever before have retained my firm to represent them as the result of a termination for cause based on one single incident of misconduct. While terminations for cause following a single act are rare, they exist and the ramifications for even exonerated employees are huge.

Phillip Kelly worked as a materials manager for Linamar Corp. for 14 years. He was a well-respected and trusted employee with a spotless employment record. Shockingly, he was arrested and charged with possession of child pornography in his 14th year of employment. Linamar terminated him for cause based on this single mark on Kelly's otherwise pristine record. This despite his activities were conducted from the privacy of his own home.

The court upheld Kelly's termination for cause and found that Linamar was justified in taking steps to protect its reputation. Kelly's crime of moral turpitude was so heinous it was clear to the court his termination for cause was on-side.

The RCMP's "slap on the wrist" approach to discipline ironically flies in the face of how the courts are treating criminal and quasi-criminal employee conduct.
Discipline must be proportionate. Less serious offences will not lead a court to impose the capital punishment of discharge for cause.

When an employee is terminated for cause, they have no reference letter to rely on, no history to serve as a credit on their ledger. They will not even be able to obtain Employment Insurance benefits to tide them over until a new job can be found. As terminations for cause create serious consequences for the affected employee — they are reserved for serious circumstances of misconduct, such as breaches of trust and criminal activity.

Some tips for employers to consider when terminating an employee for cause include:

Ensure the punishment fits the crime Employers must take measured action when disciplining. If the misconduct is minor (e.g. tardiness), written or verbal warnings suffice. If the minor misconduct continues or becomes more serious, elevated levels of discipline, such as a suspension, may be warranted. Terminating for cause in bad faith can lead to additional Honda or punitive damages.

Document misdeeds Maintain a personnel file for all employees and record all warnings (including verbal warnings and meetings) related to misconduct that you can rely on later. Keep copies of all disciplinary emails and written warnings on record. Never expunge them. Obviously, as they become dated, they are less significant — but you must always retain a record that the misconduct occurred and what consequences flowed from it.

Warn employees of the consequences of continued misconduct When issuing a warning email or letter, be sure to include a warning as to what the employee can expect will happen if the offending conduct continues such as, "Continued misconduct may (or if more serious, will) result in the termination of your employment, for cause."

Employees must be wary of how misconduct may impact their continued employment. Unlike our legal custodians, the RCMP, one bad deed may indeed be enough to end your career.

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.

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