Written on behalf of Peter McSherry

It is not unusual for workplace disagreements to occur between colleagues or between employees and management. While minor disagreements may not serve as grounds for termination, employees need to understand what type of conduct can cross the line and enter into territory that may be grounds for termination for cause.

In a recent decision from the Ontario Superior Court of Justice, a 20-year employee of a retail company was terminated after he twice-deleted a website he had put together for the employer. Coupled with his response to the deletions, the employer determined that his conduct had provided them with justification to terminate him for cause and did not provide him with notice or payment in lieu. The employee believed that he was wrongfully dismissed and sought 24 months’ payment in lieu of reasonable notice, and also claimed damages due to a breach of his human rights, bad faith, and aggravated damages.

Employee builds website for benefit of employer and employees

In the case of Park v. Costco Wholesale Canada Ltd., the plaintiff employee had worked for the defendant employer for 20 years before his termination. The employee’s career started as a front-end packer in one of the employer’s warehouses, but he eventually worked his way up to the employer’s head office in Ottawa. The employee worked as an assistant buyer, a title which qualified him for a manager/supervisor classification.

In late 2014, the employee built a cloud-based website for the employer’s toys department that allowed users within the department to share files with one another. It was built during the employee’s work time and a colleague assisted him. The website lived on the employer’s cloud computer network, and it was the employer’s property despite being the employee’s “pet project.”

Employee deletes website he built for employer

The employee’s manager urged him to share the website with management, which he did on January 19, 2015. He was told by management that they would look at the website, but the employer failed to give any feedback to the employee before he went on medical leave in February 2015.

On April 10, 2015, the employee’s manager emailed the employer to say that he could not access the website. The manager emailed the employee again on April 13, asking for ownership of the website to be transferred to him and another individual.

Employer requests ownership of website; employee expresses frustration about lack of feedback

The employee deleted the website the next day and emailed the manager expressing his anger that nobody had given him any feedback. The employer wrote that “after a few months of no communication it gives the impression that no one is interested in it,” which initiated a back-and-forth exchange in which the employee expressed his frustration with the lack of feedback given to him about the website.

Later that morning, the employer was able to restore the website and the employee was made aware of this. However, later that day, the employee deleted the website a second time and removed it from the computer’s recycling bin. The employee claimed he was not told that the website had been restored and that he was only trying to ensure that his earlier attempt to delete it was executed properly.

The employer terminated the employee for cause and the employee commenced an action for wrongful dismissal.

When can an employer terminate an employee for cause?

The Court looked at the employment agreement that governed the employee-employer relationship. The agreement included the following provisions:

“18. Wilful damage or destruction of Company property, equipment, merchandise or

property of others on Company premises.

19. Any act of insubordination, including but not limited to:

a. refusal to comply with the direct instructions or directions of a manager;

b. contemptuous behaviour or remarks to a manager.”

The Court looked to the Supreme Court of Canada’s test for establishing the standard that must be applied when assessing whether an employee’s dishonest actions meet the threshold for just cause for dismissal. In the decision of McKinley v. BC Tel, the country’s highest court wrote that:

“More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer.”

Court finds series of acts contributed to employee’s misconduct

In considering whether the termination was justified, the Court was required to determine the nature and extent of the misconduct, the surrounding circumstances, and finally whether dismissal was warranted. In this case, the Court found that a series of acts had contributed to the employee’s misconduct, including both instances of website deletion along with the email exchanges in which the employee expressed outrage that the employer had not provided him with feedback.

The Court also found that the deletion was tantamount to destruction of the employer’s property. Further, the language used in the employee’s communications with the employer were classified as “insubordinate and disrespectful.”

In turning to the surrounding circumstances, the Court found that since the employee worked in a managerial position, the employer had a great level of trust in him.

Ultimately, the Court decided that the employer did have reason to terminate the employee for cause, and the employee’s action was dismissed with costs.

Contact Employment Lawyer Peter A. McSherry in Guelph for Trusted Advice on Workplace Terminations and Wrongful Dismissals

The skilled employment law team at Peter A. McSherry Employment Lawyer understands that termination of employment can substantially impact both the employee and employer. When employees feel that they have been wrongfully or constructively dismissed from their employment, there are several factors to consider before bringing a claim. Our employment law team will help you understand your rights and advise you on your options regarding severance packages and claims for damages. To schedule a confidential consultation with a member of our firm, call us at 519-821-5465 or complete our online form.