Canadian employment law does not recognize “at will” employment. An employer requires “just cause” to terminate someone without severance pay. Can you have a just cause termination for a 26-year employee with a previously clean employment record?
Yes, said one labor arbitrator, when an employee was caught repeatedly watching TV on the job in a hidden “lounge.” And where there was dishonesty, time theft, and breach of trust. Such was the case in Toronto District School Board v. Canadian Union of Public Employees, Local 4400.
For many years, the state of one of the employer’s schools was problematic. The caretaking staff didn’t seem to understand what their work entailed or what the employer’s standards were. The frequent change in head caretakers, the lack of cleaning schedules, and the covering up of incomplete work seemed to be the source of the problem.
After several complaints were lodged, the employer investigated. It quickly realized that employees were wasting time and spending an unreasonable amount of time in the staff lunchroom. What were they doing? Sitting on the couch watching TV. Thinking that this was the basis of the problem, the employer ordered the staff to remove the TV and couch from the lunchroom. But that didn’t solve the problem.
The employer installed a new head caretaker. He realized that the staff hadn’t removed the TV and couch from the lunchroom. Rather than discipline the staff, the employer once again insisted that the employees remove the TV and couch from the lunchroom. This was done. Little did the employer know, the employee who was fired and eventually filed a grievance found a better place for them. He put them in a room in the school’s basement, creating a “lounge room.”
To assist in its investigation, the employer installed covert cameras in the lounge room and the lunchroom to identify which employees were taking unauthorized breaks and when. Over the course of three months, the employer identified the culprits.
Many of the culprits were disciplined. However, the employee making the grievance was terminated. Why? Over 35 working days, he spent more than 27 hours in the lounge room. And when confronted, he was not forthcoming and made excuses.
Arbitrator Larry Steinberg agreed there was cause for the employee’s termination for dishonesty, time theft, and breach of trust. The arbitrator noted the warnings the employer had provided. Termination based solely on the lack of performance of the employee during the last period of employment would likely not have been appropriate. And in other circumstances, the failure of the employer to correct long-term lack of adequate work performance might be a mitigating factor in favor of the employee.
In this case, given the frequency and the length of time the fired employee spent in the lounge room, as well as his dishonesty during the employer’s investigation and at the arbitration hearing, termination was appropriate. This despite his long service and the lack of prior progressive discipline.
Lessons for employers
This case demonstrates that employers should not assume that employees will distinguish unacceptable behaviors from acceptable ones. When trying to improve work performance with an underproductive team, employers must clearly communicate their expectations and standards. Not only that, but they must convey the consequences of not living up to them. When that is done, termination may be appropriate.