In Roe v. BC Ferry Services,
the BC Court of Appeal recently clarified the right contextual
approach for employers to take when determining whether an
employee's misconduct is serious enough to constitute just
cause for dismissal. The decision is encouraging for
employers because it overturns a previous finding that a
"relatively minor" breach of company policy falls short
of just cause.
Mr. Roe was a senior manager, responsible for the Duke Point
Ferry Terminal for over four years. An investigation revealed
he had, on more than one occasion, knowingly given complimentary
food and beverage vouchers (valued at $70 and $120 or $130) to his
daughter's volleyball team without prior authorization and
contrary to company policy. BC Ferries gave evidence of its
policies, core values, and Code of Ethics, which were incumbent on
managers like Mr. Roe to follow and to enforce. The Code of
Ethics specifically required employees to avoid conflicts of
interest with BC Ferries, with conflict of interest being defined
as including "using corporate property, information, or
position for personal benefit". Mr. Roe denied that he
knowingly contravened what he characterized as an ambiguous policy,
despite that he had used outdated vouchers that were
The trial judge decided the case on summary judgment. The
Court assumed for the purpose of analysis at trial that BC
Ferries' version of Mr. Roe's alleged dishonesty was true,
but nevertheless concluded that Mr. Roe's actions were
"bordering on trifling" and did not amount to just cause
for dismissal. The Court considered the value of the vouchers
when assessing the seriousness of Mr. Roe's misconduct,
finding: "the extent of the gain is very slight, bordering on
trifling, although I accept that the plaintiff's position as a
terminal manager, and the corresponding obligation to lead by
example, is an aggravating factor."
The Court of Appeal rejected the trial judge's conclusion on
the seriousness of the misconduct and concluded that the value of
the vouchers was of little consequence. More important to the
Court of Appeal were: (i) the high standard of conduct expected of
Mr. Roe given the responsibilities and trust attached to his senior
management position; (ii) the conditions of integrity and honesty
in his employment contract, including the requirement in the Code
of Ethics "to act in an honest and ethical manner at all
times"; and (iii) the deliberate concealment of his actions
which he later acknowledged to be wrong and unethical.
The Court of Appeal concluded that the trial judge had not
properly applied the contextual approach and found that Mr.
Roe's misconduct, when objectively viewed by a reasonable
employer, rose to the level of undermining the obligations of good
faith inherent in the employment contract.
This decision greatly assists employers in establishing
conditions of integrity in the employment relationship and in
acknowledging the seriousness of breaching those conditions.
The Court of Appeal put significant weight on the responsibilities
and trust inherent in the position, buttressed by policies with
clearly stated expectations. When met with dishonest conduct
by the employee, even conduct involving vouchers of relatively
little value, the reasonable conclusion was that the employment
relationship could no longer continue and the employer had just
cause for dismissal.
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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