Howard Levitt: Even the most desultory employee can find favour with the courts

Yahoo

a day ago

Sometimes employees almost beg to be fired, racking up workplace infractions with abandon and leaving a messy trail as though scattering confetti at a wedding. And even then, judges are loathe to deprive them of wrongful dismissal damages.
As Justice R. Lee Akazaki of the Ontario Superior Court described in a recent case:
'At the time of his dismissal as a salesperson at Brandt Tractor, (the plaintiff) was 56 years old and had worked there for 18 years. He never made it easy for himself. Several times during his career, members of the public complained about his driving. He crashed the company truck. He injured himself at least once, while demonstrating a tractor attachment to a client. Brandt kept him on, and he was successful enough as a sales producer.'
But all strokes of good fortune (or employer beneficence) eventually come to an end. In this case, the employee's final straw was a serious customer complaint about multiple varieties of bad service and allegedly inappropriate conduct. The company seized upon this incident — on top of his earlier record — to anchor the dismissal.
The risk in using a final incident as an excuse to terminate a worker is that you must show the event was worthy of discipline. If not, the case for cause fails.
At trial, the employer relied on an email written at the time by a manager who received the call in which the customer detailed his litany of complaints.
According to the judge's ruling, '(The plaintiff) did not help himself very much in giving evidence. My impression … was that he lacked credibility. There was a record of work-related incidents and discipline under three different managers. He declined to accept he needed additional training or that he really deserved to be disciplined. Thus, if Brandt established that (the plaintiff's) encounter with his final customer was worthy of discipline, the employer would have proven just cause.'
But the employee (or his lawyer) made a fatal mistake. They did not call the customer as a witness. Therefore, all the evidence was hearsay. The problem with hearsay — and the reason why it is generally inadmissible — is that the other side has no opportunity to cross-examine the relevant witness as to precisely what occurred.
As the court noted: 'A negative credibility assessment of (the plaintiff's) evidence and version of events does not amount to proof that the encounter went precisely as the customer claimed it did. The court had no means of testing the credibility of the customer's account as related by the manager who wrote the email.'
So, even though the court was disinclined to believe the employee, it had no cogent admissible evidence that he had committed the misconduct complained of. It found that the final incident on which the termination rested was not proven, and therefore there was not cause for dismissal.
I experience this problem regularly with employer clients. They do not, for obvious reasons, want to involve their customers in a legal proceeding and will instead try to find a way to win the case without them.
I tell these clients that unless the customer testifies at trial the misconduct cannot be proved, and if the company is relying on the customer's complaint to justify the dismissal for cause, it simply cannot win. Those employers inclined to second-guess me now have a judicial finding to cure them of any doubt.
In determining wrongful dismissal damages, the court concluded that if the plaintiff had been offered 12 to 15 months' severance, he would likely have taken it. Such reasonable expectations are generally what should determine the appropriate damages. However, the judge added, 'Employment law … recognizes the special role of employment in an individual's identity and life,' and instead increased the amount awarded to 17 months' pay.
Following his dismissal, the employee accepted a job driving a parts truck at a much lower salary. He testified that he wanted to find a less stressful job. One might have thought that this admission would be viewed as a failure to mitigate and lead to a reduction in his damages. But the company did not establish that its former employee could have found comparable work if he had looked for it, so his wrongful dismissal damages were not reduced.
To add insult to apparent injury, the court did not even reduce his damages by the amount that he earned in his new job. In this, the judge relied on a court of appeal decision that employees who are forced to take lesser jobs after being fired will not have the income from that job deducted, as income from new employment will normally be deducted in assessing wrongful dismissal damages.
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This case is a cautionary one for employers and shows the extent to which our courts will go in finding in favour of employees. It is also an open invitation to even the most desultory employee to not take an allegation of cause seriously.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada.