Theft and Just Cause: Better Prove It!

Is theft just cause for termination of employment in Canada?  It might be.  But employers looking to support a just cause case with allegations of theft must be able to prove that they have built a very solid, airtight case.  Otherwise, the dismissed employee may well succeed with a wrongful dismissal claim and win substantial damages.

The recent case of Dennis v. Ontario Lottery and Gaming Corporation (2014) ONSC 3882 demonstrates just how high the bar may be for Ontario employers.

The plaintiff, Brenda Dennis, was a security manager for the defendant, the OLG.  She had worked for the OLG for more than 13 years in a senior position, supervising some 55 employees.

Ms Dennis was dismissed on what was, initially, a without cause basis.  She was offered a severance package of just under one year’s pay.  She signed off on the package and waited for her settlement funds.

However, it came to light that Ms Dennis had been in charge of arranging Wonderland tickets for OLG employees, for the social committee.  This was not an official part of her job duties.  However, in performing this role, Ms Dennis apparently “borrowed” more than $1,000 from the social committee’s Wonderland ticket proceeds.  She needed the money to pay debt she had incurred after becoming the victim of a Nigerian scam.  She gave evidence that she had always intended to repay the money.

Before paying out Ms Dennis’ severance, OLG discovered that there was a shortfall of more than $1,000 from this Wonderland ticket arrangement.  It questioned Ms Dennis and decided to withhold the agreed upon severance pending a further investigation.

Ms Dennis was charged criminally with theft but the charges were ultimately dropped.  However, OLG continued to maintain that Ms Dennis had stolen the money and that this would constitute just cause.  It refused to pay out the agreed upon settlement.  Ms Dennis sued and argued that there was no evidence of theft as she had always intended to repay the money.  She sued for an order that OLG should be required to honour the settlement arrangements.

OLG took the position that this was “after acquired cause” and that it should not have to pay out the funds since it had discovered the “theft.”

After reviewing various just cause decisions, the court came to the conclusion that termination with “just cause” would be “totally disproportionate.”

Justice O’Marra relied on a number of points:

1.  Running the social committee’s Wonderland ticket program was something that was “voluntarily assumed” by the plaintiff was not “an essential condition of her employment contract with the OLG;”

2.  Ms Dennis might not have believed or understood that “borrowing” the money would be criminal;

3.  The victim was Canada’s Wonderland rather than Ms Dennis’ employer;

4.  The employer concluded that Ms Dennis had admitted to theft but she had only admitted to borrowing the money;

5.  The internal investigation was “inadequate and inaccurate;” and

6.  The employer had agree to pay the settlement funds and Ms Dennis had signed a release that OLG had prepared.

The court therefore concluded that OLG could not maintain just cause and that it was required to pay out the agreed upon severance amounts plus legal fees.

The end result is one that seems very charitable for Ms Dennis, the dismissed employee, using the analysis the court proposed.  Obviously, this was a compassionate judge who considered the human elements of the case, the impact on Ms Dennis of being denied severance after 13 years and the circumstances in which Ms Dennis had been the victim of a Nigerian scam.  There is certainly case law support for taking into account these types of considerations.

However, stepping back for a moment, the facts seem to show that Ms Dennis’ actions were quite serious.  She removed and used more than $1,000 from a social committee fund that did not belong to her and only repaid the money after being caught.  For many judges, this may well have met or exceeded the high standard required for an employer to prove just cause, particularly for an employee in a position of trust in a high level security role.

It remains to be seen whether this decision will be appealed and how the Ontario Court of Appeal would approach the case.

The court may well have come to the same result by focusing on the deal that the employee had reached with the employer.  Since Ms Dennis had already signed off on a signed release that the employer had prepared and had already agreed to a deal, it would probably have been fair for the court to say that it was too late for the employer to start making allegations of just cause after the deal was concluded.  Instead, the court delved into issues of just cause and theft.

If the decision is upheld, particularly the court’s analysis of the theft allegations, it will demonstrate quite clearly that wrongful dismissal law in Canada is heavily skewed in favour of employees.  While more often than not that is a good thing, this type of decision will leave some employers wondering whether the just cause bar can ever be reached.

Perhaps the real message that should have been taken from this case is that neither side can reopen a severance deal once the deal has been negotiated and the release has been signed unless there is clear evidence of misrepresentation by one side or the other, which was clearly not an issue in this case.

 

 

Steps to Take When You’re Fired

No one likes the word “fired.”  It seems to somehow connote an “at fault” dismissal.  But realistically, under Canadian law, whether you have been downsized, restructured, dismissed, let go or “rightsized,” it all really adds up to the same thing.  Your employment has been terminated and you will no longer be working for your employer.  Here is a list of some things to consider if you are in that position:

1.  Remain Calm and Professional

This is one of the hardest things for many people. That is quite understandable, particularly if the termination has been handled poorly or is a bad faith termination.  For many dismissed employees, it will simply be a short meeting with the boss and an HR representative, or perhaps, just your supervisor.  Often, these meetings are very short and little is said.  Perhaps you are not even provided with a reason for the dismissal other than “the company is making a change.”  In any case, it is rarely helpful to argue or debate the issue.  It is almost always an irreversible decision and you will now have to move forward in the best way possible.  You should avoid the urge to do anything rash or impulsive.  Nasty emails sent around to company personnel or clients are almost never helpful, although a short and sweet goodbye note may sometimes be appropriate, if acceptable to the employer.

2.  Review the Termination Letter But Don’t Sign

Dismissals in Canada will generally be “with cause” or “without cause.”  If you are being dismissed “with cause,” you may not be offered a severance package.  If you are offered one, it may be one that is greatly reduced as compared to what you might have been entitled to receive in a without cause situation.  If the dismissal is “for cause,” it may be helpful to try to ask questions at the dismissal meeting about the allegations that are being made, the basis for the allegations and other related questions.

If the dismissal is “without cause,”  you will almost certainly be provided with a severance package.  In most cases, the employer will ask you to sign a release or some other agreement accepting the package.  You should never sign this type of document immediately.  You may well be entitled to significantly more than you are being offered by the employer.  If the termination letter references an “employment contract” that you signed when you first started, you should ask for a copy of it if you do not have ready access to it.   The employment contract may well set out the employer’s severance obligations and you may or may not be able to challenge this type of contract.  If you can’t find it, you may want to get a copy from HR, especially if it is referenced in your termination letter.

Whether a dismissal is for “cause” or “without cause,” it can still be considered a wrongful dismissal if you have not been given full proper compensation.

3.  Avoid Publicizing Immediately and Help Yourself

Although it might be tempting to immediately announce your departure on Facebook, LinkedIn and other social media, you should tread carefully.  It is usually not helpful to begin telling everyone immediately that you have been fired.  Consider contacting some close former colleagues or supervisors who may be prepared to provide you with a helpful reference or ideas about suitable job openings.  Consider some other contacts who may have ideas about the types of positions that would best suit you going forward.  Of course if there are people close to you, a spouse or partner, close friends, parents or others, it can be very helpful to share everything with these people, discuss your feelings and emotions and get support.  If you feel that your health has been affected, you should not hesitate to speak with your physician or, if appropriate, other health care providers such as a psychologist or psychotherapist.  Some people may find comfort in confiding in clergy, many of whom can be very empathetic.  Others may find it helpful to ramp up an exercise routine.  Whatever works best for you, take steps to keep yourself on a solid emotional footing.

4.  Meet With a Lawyer

Whether you have been dismissed for cause or without cause, this is still important.

If your dismissal is for cause, this may be something that you can challenge.  You may be entitled to significant compensation, even though the employer has claimed that it has “just cause.”  The law in Canada is quite favourable to employees.  It is very difficult for employers to succeed with a just cause defence, particularly if the defence is based solely on poor performance.

If your dismissal is “without cause,” you may well be entitled to significantly more than the employer has offered.  Have a look at what is included in the severance package.  There may be items missing such as bonus, benefits, outplacement or the severance may simply be too low.

Most employment lawyers will charge a consultation fee for this type of review.  The fee is tax deductible and often employers will pay it.  This advice may be quite valuable.  After a proper review, if you are advised that everything is in order and the package is reasonable, this may be money well spent.  Some lawyers offering a “free consultation” will avoid providing detailed advice and will try to get you to commit to providing a large deposit without really providing a proper assessment of what you should expect.  With a proper legal consultation, you should leave the meeting with a good sense of the likely range of improvement in your package if you proceed, the anticipated legal fees and an understanding of relevant legal issues.  You should not commit to anything other than a reasonable initial consultation fee for a first meeting with a lawyer.

If you had a non-competition or non-solicitation agreement in place with your former employer, this is also something that should be reviewed with legal counsel so that you can understand your rights and obligations going forward.

5.  Outplacement and a Resume

If your severance package includes outplacement assistance, you should verify whether or not it is being provided unconditionally.  If so, you should get in touch with the outplacement provider early on in the process.  Don’t hesitate to ask questions.  Will the meetings be confidential?  Will the outplacement provider be reporting back to the employer?  Does the outplacement provider have experience in your field?  If you are not satisfied with the answers, you should consider asking the employer to permit you to use a provider of your choice.  If the outplacement assistance is only being provided conditional on a signed release, you should discuss the best strategy with your legal counsel.

6.  Employment Insurance

In most cases, you should contact HRDC to file for Employment Insurance as soon as possible.  Even if you have been dismissed for misconduct or other “just cause,” you may still be entitled to EI.  Sometimes you may have to go through an appeal process to ensure your entitlement.  If you are being provided with severance, you may not receive any EI payments until two weeks after all of the severance payments have been paid.  Nevertheless, you should still register early.

7.  Health, Dental and Insurance

Your severance package may continue benefits for some period of time.  You should make sure that you and/or your family members, if applicable, are up to date with dental care, health prescriptions, eye glasses, and other items that may be covered by your extended dental plan.  If your life and/or disability insurance coverage are going to be terminated, you should consider getting quotes as quickly as possible.  In some cases, you may have 30 days to convert over your life insurance policy from a group policy to an individual policy.  This may be important if your medical tests are problematic.

8.  Be Forward Looking

Being dismissed is never easy.  This will usually involve a significant life change as you will now have to shift careers.  But most people go through this transition successfully.   You will need to do your best to stay positive, consider the types of roles that you envision yourself in and put together a personal transition plan.  You should make sure that your resume is professional, free of any errors, and eye catching.  When attending job interviews, you should remain positive and avoid bad mouthing your previous employer or boss.  You should consider dealing with the that fact that you were dismissed upfront and summarily.  Honesty will almost always be the best policy even though that does not mean telling potential employers about all of your weaknesses.

9.  Keep Track of Efforts

It will be helpful and often legally required for you to track your job search efforts.  Put together a spread sheet listing all activities. This should include formal and informal contacts.  Include lunch meetings, phone calls and discussions with friends, colleagues and former co-workers.  Track dates, people contacted, positions applied for, interviews and outcomes.  Keep this file up to date.  It may be important in proving “mitigation” if your severance entitlement has not been resolved quickly.  Or it may be required for EI purposes.  It will also be a useful part of tracking your personal progress.

10.  Carefully Consider any New Contract

When you have been offered a new position, you may well be given an offer letter or employment contract.  Don’t assume that the contact is a standard form or that it is non-negotiable even though you may really want to take the position and move on.  The proposed employment contract may limit or reduce your legal rights significantly.  Make sure you understand all of its terms properly.  You might consider having it reviewed by an employment lawyer.

These are some of the key points to consider. Certainly there are many career transition books that are quite helpful.  People often recommend What Color is Your Parachute?  Another favourite, on a lighter note, is Dr. Suess’ “Oh The Places You’ll Go.”  

There are also numerous job search websites and resources of every kind available on the internet.  Brush up your linked in profile with details of your work, references and endorsements.  Try to remain positive.  For many people, a dismissal may well lead to opportunities or new situations that might even be better for you that the role you have just left.

 

Confidentiality Provisions in Wrongful Dismissal Settlements: Enforceable?

Jan Wong photoMost settlement agreements in wrongful dismissal cases contain confidentiality provisions.  Employers do not want their former employees revealing the terms of the settlement.  The dismissed employee agrees that in exchange for a payment, he or she will give up the right to discuss the terms of the agreement.  This is generally viewed as a reasonable compromise and most dismissed employees are prepared to accept this term of settlement.  It allows employers to pay money without worrying that the case will become a precedent in their workplace.

But are these provisions really enforceable?   And what happens if they are breached?

A recent decision of an Ontario arbitrator provides an example of what can happen if a former employee is found to have breached a confidentiality provision.  In The Globe and Mail v. Communications, Energy and Paperworkers Union of Canada, a decision of arbitrator Louisa Davie, a former Globe and Mail writer, Jan Wong, was ordered to pay back a dismissal settlement after she was found to have breached the confidentiality terms of the agreement.

Well known correspondent Jan Wong had been an employee of the Globe and Mail.  She became depressed and was involved in a bitter fight with the Globe over her dismissal.  Eventually, the case was settled through mediation.  Ms Wong was apparently paid a sum of money in exchange for a confidentiality agreement.  The agreement provided that she could write about her experience with the Globe and could even make disparaging comments about the Globe, after a certain date.  However, the agreement also provided that Ms Wong could not reveal the terms of the settlement and if she did so, she would be required to pay back the entire amount of the settlement funds to the Globe.

Some time after the settlement, Ms Wong released her book Out Of The Blue, which I wrote about in 2012.  In the book, she noted that she had been paid a significant amount of money but was not permitted to discuss it.  She made some other comments in the book, including a comment that her sister told her that “she had gotten everything she wanted” and that she was so happy with the settlement she was ready to “dance a jig.”  She did not, however, reveal the amount that was paid.

The Globe decided that these comments were a breach of the settlement agreement.  It felt that the terms of the agreement prohibited Ms Wong from indicating that she had been paid any amount of money and that by telling the world, in a book, that she had been paid a large amount of money, Ms Wong breached the terms of the agreement.

The Globe brought these matters to the attention of the arbitrator who had been charged with handling the case.  It asked for a repayment order.  The arbitrator agreed with the Globe and ordered Ms Wong to pay back the full settlement amount.  In coming to this conclusion, arbitrator Davie accepted that some of the comments that Ms Wong made in her book were not a breach.  However, the fact that Ms Wong had made it clear that she had been paid a large amount of money by the Globe was held to be a breach of the terms and warranted the full payback.

The case is not typical of most wrongful dismissal cases because it occurred in a unionized environment.  Rather than going to court, the Globe simply went right back to the arbitrator who had been hearing the dispute in the first place before it was settled.  As a result, Ms Wong was represented at all times by union counsel, even though she made an unsuccessful court application to be entitled to use her own counsel in the matter.  There was obviously significant tension between Ms Wong and the union.

More significantly, employees rarely breach confidentiality provisions so publicly.  Here the employer did not have to prove that Ms Wong had actually said anything – it simply pulled out a copy of her book at the hearing and pointed to a number of passages.

One of the key union arguments, on behalf of Ms Wong, was that this was not a “substantial breach” of the type that would warrant such a harsh repayment order.  Ms Wong did not disclose the amount of the settlement or the detailed terms.  The fact that the case was settled almost always suggests that the employer paid some amount to the dismissed employee to resolve the dispute.

The arbitrator rejected these arguments.  She found that although Ms Wong might have been permitted to tell people that the case had been settled, the revelation that a large amount of money had been paid was a breach of the compromise settlement to which the parties had agreed.  The arbitrator further noted that although Ms Wong had run her book by legal counsel to ensure that she was not libeling anyone, she had not used legal counsel to vet the book against the settlement terms.  The arbitrator suggested that Ms Wong should have provided the book to union counsel to review before publishing it.

The end result seems quite harsh, irrespective of how much sympathy Ms Wong may or may not attract, personally.  (She had a history of conducting particularly aggressive and sometimes obnoxious interviews).  The agreement does not really define a “breach.”  The money was not all paid to Ms Wong only in exchange for a confidentiality provision.  It was paid, presumably to settle a significant liability that the Globe faced.  There is no discussion of the damage that the Globe suffered, nor any sense of proportionality to the award.

Since this is an arbitration award, Ms Wong would normally be required to convince the union to bring a judicial review application to an Ontario court.  Ms Wong is apparently making efforts to bring her own judicial review application, with her own counsel, even without full union support.

The case is a dangerous warning to dismissed employees who sign settlement agreements with confidentiality terms.  Employees who publish books or articles, post triumphant messages on Facebook or other social media, send around emails – or who otherwise discuss the terms of their confidential settlement arguments may find themselves in a second round of legal action with their former employers looking for payback

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