Previously, we posted
here on the case of the CIBC employee who had been dismissed
for using her personal account to complete a wire transfer for a
client in Ogden v CIBC. The initial trial decided only
that Ms. Ogden had been wrongfully dismissed and the heads of
damages. The trial judge found that CIBC had conducted a flawed
investigation of Ms. Ogden's conduct and there was a lack of
clarity, training and consistency in its policies and
In a decision handed down April 27, 2015, the BC
Court of Appeal ordered a new trial. In particular, the court found
that the trial judge had misapprehended the evidence and CIBC's
legal arguments, such that the trial judge's overall conclusion
could not stand.
The trial judge had adopted some 482 paragraphs, "almost
word for word" from Ms. Ogden's closing submissions as
part of his 497 paragraph judgment. In light its conclusions on
substantive issues with the trial judge's decision, the court
of appeal did not have to decide whether this had given rise to any
procedural unfairness in the hearing.
However, with respect to substantive issues, the court found
that the trial judge had misunderstood CIBC's argument on just
cause. The trial judge understood CIBC to have made an argument for
cumulative cause, in that "two or more wrongs
are worse than one". In part, he found that CIBC could not
succeed on this argument because Ms. Ogden had been given a final
warning for other misconduct only after she had committed the wire
transfer misconduct – CIBC could not consider this in breach
of the final warning if Ms. Ogden did it before being warned.
This was a fundamental error. CIBC did not argue cumulative
cause, but rather, relying on the Supreme Court of Canada's
decision in McKinley v BC Tel, argued that the context in
which Ms. Ogden committed the wire transfer misconduct – in
which she had been previously warned and counselled about how
seriously CIBC takes even slight violations of its policies –
made the wire transfer incident that much more severe.
The court of appeal also found that the trial judge had made
irreconcilable findings on aggravated and punitive damages and that
he had misapprehended the evidence that the wire transfer was not a
breach of CIBC's Code of Conduct.
Though the court of appeal did not reverse the trial judge's
findings on cause, its decision affirms the importance of
CIBC's process of taking every breach of its policies seriously
and responding in a measured and appropriate (and documented)
fashion. The decision further highlights how, even in circumstances
where an employer may not have a clear trail of cumulative
instances of misconduct amounting to just cause for dismissal, the
contextual history of an employee's workplace conduct may form
a crucial aspect of a court's analysis of one particular act of
misconduct said to amount to just cause.
We will be sure to report on the outcome of the new 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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
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