Failure to investigate alleged misconduct can be costly

by | Apr 2, 2014

It is not uncommon for employers to fire first and ask questions later, especially in instances of alleged employee misconduct. Stelcrete Industries Ltd., a rebar assembly plant in Welland, Ontario learned that impulsive actions can be costly.

Stelcrete Industries Ltd. chose to stay open on Family Day and told Ludchen, the plant supervisor, to post a written announcement of their substitute day off. An undercover investigator posing as a Stelcrete employee informed management that although she did not witness the occurrence she was told that the supervisor “freaked out,” threw a garbage can and then made a discriminatory remark about the ethnicity of the company’s owners when he was told to post the announcement. Satisfied that Ludchen was guilty of misconduct the company immediately fired him.

At a recent trial to determine whether the supervisor was wrongfully dismissed, Ontario Superior Court Justice Joseph Henderson ruled in favour of the former supervisor because Stelcrete was unable to connect the man’s alleged comments back to him. The undercover investigator’s testimony about what others told her was hearsay, and none of the other employees who testified corroborated the alleged remarks.

What Daniel Lublin, employment and labour lawyer at Whitten Lublin PC advises is that, “When dealing with alleged employee misconduct, the onus is squarely on the employer to prove that the punishment fits the crime.”

Without first investigating the situation, or at least confronting the employee with its accusations, Stelcrete was unable to provide the evidence required to convince the judge that the company acted correctly. As a result, the former supervisor was awarded his legal costs, 12 months’ pay and damages in lieu of his benefits and a bonus he ordinarily received.

In his Globe and Mail article, Don’t fire first and ask questions later Lublin summarizes Ludchen v. Stelcrete Industries Ltd., 2013, and offers employers advice on how to proceed with investigating allegations of misconduct before dismissing an employee.

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