The BC Supreme Court recently reminded employers of the
potential consequences of improperly handling a termination for
just cause. George v. Cowichan Tribes illustrates
the care employers must take when investigating allegations of
employee misconduct and when considering appropriate disciplinary
Ms. George had been an employee of Cowichan Tribes in various
positions for 30 years and at the time of her dismissal an
Associate Executive Director position. She was a valued
senior manager with no previous performance issues or disciplinary
history. She was dismissed following an incident that
occurred one evening while off duty at a local bar. There was
an altercation between Ms. George and another woman, Ms.
Seymour. Ms. George admitted that, while intoxicated, she had
accosted Ms. Seymour and told her not to interfere with visits
between Ms. George's grandchildren and their father whom Ms.
Seymour was dating. According to Ms. Seymour, Ms. George also
threatened, slapped and insulted her. Ms. George denied these
Ms. George was dismissed for cause for her conduct and for
allegedly being dishonest about her conduct to her employer.
At trial the evidence came down to a credibility contest and the
court ultimately preferred Ms. George's version of what had
occurred. The court found that this was an isolated incident,
away from work, about a family matter, and was wholly out of
character for Ms. George. Accordingly, it did not justify
summary dismissal. Ms. George was awarded 20 months' pay
in lieu of reasonable notice of termination.
The court also awarded aggravated damages of $35,000 to Ms.
George because of the following conduct by the employer:
did not give Ms. George the opportunity to confront or respond
to the allegations made against her, particularly the allegation of
it did not give serious consideration to Ms. George's
lengthy service and her exemplary discipline record; and
it did not give serious consideration to whether there were
measures short of dismissal that could have been imposed,
particularly considering the employer's own human resources
policy which contemplated a process of progressive discipline.
When determining whether there is cause to terminate an employee
for misconduct, employers should always:
Put allegations directly to the employee being investigated,
including allegations that the employee is being or has been
dishonest. The employee should not have to guess what is
being alleged when trying to respond to questions; and
Consider all the circumstances, including an employee's
lengthy exemplary work history, in determining whether the
employment relationship is irreparably broken.
Employers failing to fully investigate allegations of misconduct
and consider all relevant circumstances before terminating an
employee for cause take a significant risk of being subject to a
large monetary award.
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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