Author: Daniel A. Lublin
Proof of workplace misconduct may be present, but it seldom matters if the punishment doesn’t fit the crime.
54-year-old sales associate, Peter Tong, had a relatively uneventful job. For nearly five years, he went to work at a Toronto-area Home Depot, he did his job and then he went home. But within 24 hours on the job, the new floor manager, Bill MacDonald, concluded that Tong was taking longer breaks than allowed. MacDonald shared his view with the store’s manager, who encouraged him to keep a watchful eye on Tong. MacDonald kept Tong under almost constant surveillance; he followed him into the lunchroom, kept track of when Tong left the floor, when he ate lunch and when he punched in and out. In the words of the Court, MacDonald was “consumed” with building a case against Tong. He was successful. Based on MacDonald’s investigation, Home Depot fired Tong for just cause.
Some investigations leave much to be desired. Tong was not given an opportunity to respond to MacDonald’s concerns or the chance to offer any explanation. MacDonald did not interview a single employee about Tong and chose not even to speak to Tong’s supervisor.
With no legal entitlement to continued employment, Home Depot was certainly free to terminate Tong at its pleasure. But it was mistaken in doing so for just cause. In the Court’s words, terminating an employee for just cause is “the capital punishment crime of employment law”. As companies are entrusted to investigate and then administer discipline at their own prerogative, where serious flaws in the process occur, the decision to bring down the axe will not be supported. The investigation Home Depot performed was imperfect and as a result, its defence to Tong’s lawsuit for wrongful dismissal was fatal.
Not only should employers conduct investigations that are neutral and fair, any discipline administered should be proportionate:
The accused should have an opportunity to tell his or her side of the story and offer any explanation or mitigating circumstances. Few investigations will be endorsed without giving the employee an ability to respond.
Investigations should elicit all relevant information. Witnesses should be interviewed, statements recorded, documents secured and the outcomes should not be formed in advance.
Prior to asserting just cause, discipline short of termination should be considered and utilized. In considering the appropriate form of discipline, if any, the employee’s history and prior performance should be considered. Employees with a long and stellar performance ought to be shown more deference if the allegations are out of character.