Breach of policy does not necessarily justify termination for cause

If employee doesn’t have control over circumstances of breach, it may not matter how clear the policy is
By Ronald Minken
||Last Updated: 03/11/2015

Terminations for cause can be difficult for employers to justify as there are few solid rules for determining cause for termination and each case must be determined by its own particular circumstances. The Ontario Superior Court of Justice Small Claims Court’s decision in Schalk v. Sitel further demonstrates that this contextual approach for determining whether an employer was justified in terminating an employee for cause is alive and well even when the termination is as a result of a breach of a workplace policy.

The employee was employed by the employer for approximately nine-and-one-half years and held the position of corporate customer relations agent. In this position, the employee handled customer complaints by telephone for the employer. The employee wore a headset which would make a “bing” in her ear when a customer was on the line, at which time the employee would begin speaking and address the customer’s complaint. Accordingly, the employee did not know and had no control over who was calling.

On Sept. 20, 2014, the employee received a termination letter informing her that she was terminated for cause as a result of taking a personal telephone call at the workplace in contravention of the employer’s policy. Specifically, on Aug. 2, the employee received a telephone call from a co-worker while performing her employment duties.

Upon hearing the evidence presented over a two-day trial, the Ontario Superior Court of Justice found that the employer was not justified in terminating the employee’s employment for cause. The court found that as the employee had no control over who was calling and did not know who was on the other end of the call until she was already connected, a less-severe form of discipline should have occurred. Accordingly, the court awarded the employee 10 months’ notice.

Lessons for employers

The above decision demonstrates the difficulty an employer can have in justifying a termination for cause even when there is a breach of a written workplace policy. While a breach may occur, employers should be aware that the context surrounding how the policy was breached and whether the employee had control over such a breach will be considered by the court in rendering a decision of whether the termination for cause was justified.

Lessons for employees

While the above decision demonstrates that a breach of a workplace policy may not necessarily result in a justifiable termination for cause, employees should be aware of all workplace policies to which they are required to adhere during their employment and whether there are any practical difficulties in doing so.

For more information see:

· Schalk v. Sitel, [2014] O.J. No. 6326 (Ont. Small Cl. Ct.).

Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique, located in Markham, Ontario. He can be reached at Ron gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in preparation of this article.

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