As discussed in our blog entitled “Termination for Cause – Hard to Prove” (and as is evident from the title), terminations for cause can be difficult for employers to justify as there are few solid rules for determining cause for termination and each case must be determined by its own particular circumstances. The Ontario Superior Court of Justice’s decision in Schalk v. Sitel further demonstrates that this contextual approach for determining whether an employer was justified in terminating an employee for cause is alive and well even when the termination is as a result of a breach of a workplace policy.
The Employee was employed by the Employer for approximately 9½ years and held the position of Corporate Customer Relations Agent. In this position the Employee handled customer complaints by telephone for the Employer. The Employee wore a headset which would make a “bing” in her ear when a customer was on the line at which time the Employee would begin speaking and address the customer’s complaint. Accordingly, the Employee did not know and had no control over who was calling.
On September 20, 2014, the Employee received a termination letter informing her that she was terminated for cause as a result of taking a personal telephone call at the workplace in contravention of the Employer’s policy. Specifically, on August 2, 2014, the Employee received a telephone call from a co-worker while performing her employment duties.
Upon hearing the evidence presented over a two day Trial, the Ontario Superior Court of Justice found that the Employer was not justified in terminating the Employee’s employment for cause. The Court found that as the Employee had no control over who was calling and did not know who was on the other end of the call until she was already connected, a less severe form of discipline should have occurred. Accordingly, the Court awarded the Employee 10 months notice.
Lessons for Employers
The above decision demonstrates the difficulty an employer can have in justifying a termination for cause even when there is a breach of a written workplace policy. While a breach of such a policy may occur, employers should be aware that the context surrounding how the policy was breached and whether the employee had control over such a breach will be considered by the Court in rendering a decision of whether the termination for cause was justified. Accordingly, prior to terminating an employee for cause, employers should seek out the advice of Employment Law Lawyers for guidance.
Lessons for Employees
While the above decision demonstrates that a breach of a workplace policy may not necessarily result in a justifiable termination for cause, employees should be aware of all workplace policies that they are required to adhere to during their employment and whether there are any practical difficulties in doing so. Obtaining assistance from an Employment Law Lawyer prior to such difficulties becoming an issue at the workplace may be advisable to minimize the risk of becoming involved in a legal dispute regarding a cause termination.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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