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Tape Recorded Profanity is Employee's Downfall
Mon, 2007-12-10 10:22 — Robert Smithson
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Just cause for summary dismissal from employment is a threshold that can often seem unattainable to employers. The standard is a high one because summary dismissal is the ultimate form of discipline, carrying with it the penalty of the loss of the right to working notice (or pay in lieu thereof).
Just cause may be applied to both a single instance of egregious misconduct or to a pattern of ongoing unacceptable conduct. Generally, an employer faced with a difficult employee must engage in a series of steps before it can be determined the employee’s conduct represents a fundamental breach of the employment contract.
The employer should, in writing, bring the unacceptable nature of the conduct to the employee’s attention and provide directions regarding an acceptable standard. The employer should provide the employee with an appropriate period of time to alter the pattern of behaviour and should make itself available to assist the employee in that regard. It should clearly warn the employee of the ramifications of failing to conform to the desired standard.
In most instances, this will process will need to be repeated numerous times. If, ultimately, in the face of ongoing counseling and warnings the employee is unwilling to conform to the desired standard of conduct, just cause for summary dismissal may exist.
However, even when this process has been followed closely there is no guarantee a court will find the existence of just cause for summary dismissal. That determination will always be made based on the particular circumstances of the situation.
In some instances, a single occurrence of egregious conduct by the employee can form the basis for a just cause dismissal. It is fair to say, however, that it takes more than your garden variety of poor behaviour to amount to just cause based on a single incident.
The B.C. Supreme Court recently dealt with just such a situation. Rysstad had been employed for over 12 years by a turbine manufacturer named Dependable Turbines Ltd. The Court described Dependable Turbines as a “masculine environment in which profanity and course talk are common”.
As a result of a change in management style, the relationship between Rysstad and his employer had begun to deteriorate. There was, as Rysstad put it, increased friction between management and employees generally.
Rysstad took a brief stress leave and, upon returning to work, management became increasingly unhappy with his performance. He also assumed something of a leadership role in the employees’ bid to have Dependable Turbines index their wages. The court noted Rysstad’s mounting unhappiness over the issue of the indexing of wages and said that the relationship between him and management became increasingly acrimonious.
As a result of the increasing tension in their dealings with him, the company’s president used a concealed tape recorder to record a conversation with Rysstad. During that discussion, Rysstad called the president a “fu%&ing as%#*le” and a liar, and characterized him as incompetent.
Rysstad was dismissed from his employment for just cause, and responded by suing for wrongful dismissal. The Court, apparently relying on the tape recording, found that the employment relationship had been irreparably ruptured. The Court determined that Rysstad’s comments were seriously intended and were verbally abusive.
In the words of the Court, “There are many ways to bring an employment relationship to an end. Mr. Rysstad discovered one of them.” It concluded that Dependable Turbines had just cause for summary dismissal.
It is likely that the Court was swayed in this instance by the combination of the harshness of Rysstad’s language and the fact that his comments were directed personally towards the company’s president. The Court apparently felt that this sort of verbal abuse was beyond what an employer should be required to withstand.
It seems very likely that had the employer not caught the tirade on tape, the Court might have come to a different conclusion. That, however, should not be taken as a blanket validation of the practice of recording employees’ activities in the workplace.
There was no commentary from the Court about the appropriateness of a surreptitious recording of the employee’s comments and the encroachment on the employee’s right to privacy that may have involved. In this case, however, the tape recorded profanity was surely the employee’s downfall.
Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to http://www.pushormitchell.com/.
