Striking a Balance Between Employee Misconduct and Sanctions Imposed
In the recent decision of Stevens v. Port Coquitlam (City) [Stevens], Mr. Marco Stevens (the “Plaintiff”) was terminated because he used a municipal facility to wash his personal vehicle, contrary to his employer’s policy. The British Columbia Supreme Court (the “Court”) awarded the Plaintiff, a management-level employee of the City of Port Coquitlam, approximately $58,000 in wrongful dismissal damages, stating that “the City had other sanctions available that could have achieved legitimate objectives,” such as suspending the Plaintiff without pay and/or imposing remedial training.
The Plaintiff was employed by the City for approximately 7 years (5 of those years as a unionized employee). In 2018, he used the municipal facility to wash his personal truck and was told by his supervisor that it was contrary to the City’s policy. The Plaintiff was not disciplined following the 2018 incident; he did not receive a formal verbal or written warning and his supervisor did not put anything on the Plaintiff’s employee file regarding the 2018 Incident.
In 2020, the Plaintiff used the municipal facility again to wash his pickup truck and recreational trailer. The Plaintiff’s supervisors met with the Plaintiff to address the issue. After this conversation, the Plaintiff sent his supervisors a text message stating: “I had a lapse of judgments [sic] and I was wrong. I’ll take whatever comes from it on the chin. My bad guys.”
The following day, on November 25, 2020, the City representatives met with the Plaintiff and provided him with a letter terminating his employment for cause.
General Legal Principle
In the Supreme Court of Canada (SCC) decision of McKinley v. BC Tel (2001) [McKinley], the SCC set out a contextual analysis for determining the existence of just cause for dismissal. The Court emphasized the importance of “proportionality” in terms of striking a balance between the employee’s misconduct and the sanction imposed. A three-step analysis – coined as “the proportionality principle” – emerges from McKinley:
a) determine the nature and extent of the misconduct;
b) consider the surrounding circumstances; and
c) determine whether dismissal for cause is a proportionate response; that is, determine whether the misconduct in its proper context has led to a breakdown of the employment relationship or is otherwise irreconcilable with the continuation of that relationship.
The Court found that the Plaintiff’s dismissal was not a proportional response to the misconduct, and that a reasonable employer informed of the relevant circumstances would not conclude that the employment relationship was damaged beyond repair. The Plaintiff was entitled to wrongful dismissal damages in the amount of $58,000.
The Court stated the following:
87 “…I find that the City had other sanctions available that could have achieved its legitimate objectives. The City could have suspended Mr. Stevens without pay. It could have required him to attend remedial training...”
88 “The 2020 Incident reflected poorly on Mr. Stevens’ management skills. However, I am not persuaded the employment relationship was damaged beyond repair. Mr. Stevens was relatively new to management. He needed coaching in the leadership aspects of his position. There is no evidence that he was uncoachable in this regard. Even with a second breach of policy, I am not persuaded his behaviour could not be corrected with a clear warning and appropriate discipline.
The Bottom Line
Even with cause, if an employer dismisses an employee without prior written warnings, the employer may face an uphill legal battle. An employer can end up paying for wrongful dismissal damages and even damages for bad faith or unfair dealings. Only the most significant incidents, such as theft or serious workplace harassment or violence, may be cause for a dismissal without prior warning.
If an employer issues multiple warnings, with no progression of discipline, this implies a tolerance of misconduct. Employers must demonstrate that a repetition of the negative behavior will lead to increasing levels of discipline, up to and including termination. In employment law, this is referred to as “progressive discipline.”
At Hyde HR Law, we offer expert legal advice on effective termination strategies to ensure compliance with statutory obligations. Please do not hesitate to contact us.