Employers are sometimes quick to terminate an employee when they believe that employee has been dishonest, or deceitful in their conduct, i.e., when they believe they have “just cause” for termination. A recent decision by the Supreme Court of British Columbia is an important reminder that, despite the reason, employers must ensure their conduct in the manner of termination is bona fides and justifiable, or they potentially face severe consequences for their actions.
In Acumen Law Corporation v. Ojanen, 2019 BCSC 1352, the Plaintiff, Ms. Melissa Ojanen (the “Employee”), was hired as an articling student by the Defendant, Acumen Law Corporation (the “Employer”), on May 24, 2016. In order to obtain a license to practice law in British Columbia, law school graduates are required to, among other things, work with and receive mentoring from a licensed lawyer for a period of 12 months, attend the professional legal training course (“PLTC”) and successfully complete the British Columbia bar exam.
Part way through her articling term, the Employer discovered that the Employee had been writing a personal blog containing similar legal information to that posted on the Employer’s website, which it believed was hindering its marketing efforts. This conduct served as the trigger for the termination of the Employee’s employment. However, the Employer did not communicate its discovery with the Employee, nor did it involve her in the investigation into the same.
Instead, on September 16, 2016, the Employee was served with a termination letter, and a notice of civil claim, in front of her entire PLTC class. The basis of the termination, included the following alleged conduct: entering the Employer’s premises after-hours without permission; taking client materials home without permission; failing to attend a court appearance as scheduled; insubordination; avoiding responsibility and demonstrating she was unfit to practice law.
The Employer’s notice of civil claim against the Employee included allegations of breach of contract, theft, wrongful use of marketing materials, and trespass. The Employer also reported the Employee’s alleged dishonest and deceitful conduct to the Law Society of British Columbia.
The Employee counter-sued her former Employer for wrongful dismissal seeking compensatory, aggravated, punitive, and bad faith damages for the Employer’s conduct in the manner of her dismissal.
At trial, Justice Gomery dismissed the Employer’s action against the Employee outright.
In relation to the wrongful dismissal, the Court concluded that none of the alleged acts of misconduct, individually or collectively, amounted to conduct constituting “just cause” for termination of the Employee. The Court ordered $18,934 in ordinary damages for her lost wages and vacation pay owing for the time remaining in her 12 month articling period.
In assessing the Employee’s claim for non-compensatory damages, the Court concluded that together, the Employer’s conduct was “unfair, bullying, [and done in] bad faith,” causing the Employee serious and prolonged emotional distress well outside the norm for dismissed employees. Specifically, Justice Gomery found that serving the Employee with the notice of civil claim and termination letter in a public place was “unnecessary and psychologically brutal”. In addition, the Court found the Employer’s failure to discuss its concerns over the Employee’s blog before terminating her, accusing her of deceit and dishonesty based only on unfounded suspicions, and persisting with a lawsuit against her based on unfounded allegations was all conduct that was unfair and unduly insensitive. The Employee was awarded $50,000 in aggravated damages as a result.
While this decision does not represent a change in the law of “just cause,” it highlights the importance of the duty of good faith and fair dealing when terminating employees. Employers must ensure that the misconduct at issue is not only sufficient to rise to the level of “just cause,” but also that the employee is provided with a fair opportunity to present their side of the story prior to taking steps to implement dismissal. In addition, employers must also ensure that the manner of termination is respectful, fair and sensitive to the vulnerability of the employee being terminated. For more information about this article or for help in “just cause” terminations, please contact Jaime Hoopes.