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Sometimes staying employed means accepting responsibility

The challenge of knowing what amounts to just cause for summary dismissal, and what doesn’t, can stymie employers and their lawyers alike. It can be extremely difficult to estimate how a court will react to allegations of misconduct (and the assertion that they amount to cause for summary dismissal).

In reality, all we can do is consider how previous situations have been handled by the courts and assess how similar circumstances might be viewed. It’s definitely more an art than a science.

That being the case, we are sometimes proven wrong in our assessment. That’s why I like to caution employers (and employees) that while 100% of litigants believe their case is going to be successful, 50% of those people are ultimately proven wrong.

A recent decision by B.C.’s Supreme Court is one which I’m certain I would have assessed incorrectly. It involved an employee, McGachie, and her refusal to acknowledge a mistake she had made in the course of her duties.

McGachie had been employed as a counselor by the Victoria Immigrant & Refugee Centre Society for several years. The Society, relying on funding from Human Resources and Social Development Canada, provides employment services to refugees and immigrants.

In the course of her employment she had been provided with several warnings as a result of mistakes she had made in the course of her duties. She had never, however, been provided with a formal written performance appraisal.

Her employment was terminated in 2004 after she committed a serious error in the course of her duties. The Society’s evidence indicated her error had the effect of disqualifying certain refugee claimants from getting the Employment Assistance Services offered by the Society.

Her error was the improper submission of a particular document to Human Resources and Social Development Canada. The main reason for the termination of her employment, however, wasn’t that error. The Court was not persuaded that her mistake was of such a consequence to warrant summary dismissal (either alone or as the culminating event of a series of earlier mistakes of which she had been warned).

Her downfall was the fact that she refused to acknowledge the error to her employer, in writing. After the mistake had been discovered, her employer met with her to discuss what she had done and to ask her to acknowledge her mistake in writing. The Court characterized the demand for her acceptance, in writing, of responsibility as the “discipline” imposed by her employer.

The Court concluded that this form of discipline was reasonable and that McGachie’s refusal to acknowledge her mistake in writing constituted insubordination. As the Court stated, willful refusal of a reasonable and lawful direction from the employer provides just cause for summary dismissal.

Instead of accepting her employer’s direction, McGachie provided a letter but did not acknowledge her mistake. There was also an indication in her letter that she intended to follow her own approach in serving the Society’s customers. In the result, the Court accepted the employer’s view that McGachie had repudiated the employment contract and this justified her summary dismissal.

I would never want to suggest that the Supreme Court of B.C. erred in its decision. However, if I had been consulted, my advice would have been that the employee’s refusal to acknowledge her error in writing did not provide the employer with a just cause basis for summary dismissal.

There’s no doubt that the employer has the authority to take a position as to whether the employee’s conduct was appropriate. And, if it determines the conduct was not appropriate, the employer clearly has the authority to impose certain disciplinary responses.

In my view, however, forcing the employee to acknowledge responsibility in writing is beyond the boundaries of the employer’s discretion. I am unaware of any implied term in the employment relationship to the effect that the employee has an obligation to agree with the employer’s assessment of her conduct.

It may be that the Court was influenced more by McGachie’s apparent refusal to accept the employer’s approach in future instances. Regardless, what’s important here is that two divergent conclusions can be arrived at in relation to a single set of circumstances. That is typical of the way the law of employment works and it shows how difficult it is to predict what conduct will amount to just cause, and what won’t.

We’ll have to wait and see whether Ms. McGachie will be appealing this decision. In the meantime, exercise caution when assessing an employee’s conduct and keep in mind that a judge may not see things the same way as you.