In a recent case from British Columbia, Manak v. Workers’ Compensation Board of British Columbia (cob WorkSafe BC), 2018 BCSC 182, the court held that an employee’s repeated breaches of a confidentiality policy justified the employer to terminate her employment for cause. In employment law, for cause terminations are exceedingly difficult to prove with the onus of proof on the employer to establish that the employee’s conduct was to such a level that the employment agreement is frustrated. Normally, for cause is left for the most serious of employee misconduct including, but not limited to, theft, gross insubordination, abandonment, or workplace violence, but this case demonstrates that serious breaches of corporate policies can also be enough to reach the just cause threshold.
Case Details
In Manak, the plaintiff, who was 61 years old, was a manager at WorkSafe BC responsible for overseeing internal staff claims being processed by WorkSafeBC. She had worked for WorkSafe BC for about 36 years prior to her termination. The position itself was particularly sensitive as it dealt with WorkSafe BC’s own employees. The plaintiff had been warned not to discuss staff claims, even with other managers due to the sensitivity of the claims and people involved. The plaintiff was also an “ethics advisor” operating as a resource point for employees for all matters relating to the ethical conduct and the Standards of Conduct that applied to all WorkSafe BC staff.
Evidence presented at trial showed that the plaintiff had, in a series of informal conversations at work with subordinates:
- Disclosed that a particular employee was facing disciplinary measures;
- Disclosed advanced knowledge of an employee’s termination for accessing her family and friends’ claim files; and
- Repeatedly disclosed details of staff claim files to the point that it was a running joke within the department that staff should not get hurt at work as everyone would know about it.
The Standards of Conduct of WorkSafe BC set out the requirements and expectations regarding confidential information. It stated that employees are required to respect the confidentiality of all information they acquire by reason of their employment at WorkSafe BC. Employees are prohibited from disclosing confidential information to fellow employees except as required by law or as required in the performance of their duties.
The plaintiff was eventually reported for breaches of the Standards of Conduct and summoned to a meeting with her supervisor and Human Resources where she denied any wrongdoing. The plaintiff was escorted off the premises and sent home with pay pending a workplace investigation. On April 18, 2011, the plaintiff was contacted by telephone and was told to attend a meeting the following day. The following day, the plaintiff attended at the defendant’s offices and met with a Senior Human Resources Advisor who advised that WorkSafe BC had completed its investigation and determined the following:
- the plaintiff had breached the Standards regarding confidentiality of information;
- the plaintiff had not responded accurately when questioned about her conduct;
- the plaintiff was found to be untrustworthy and not to be credible;
- WorkSafe BC had therefore decided to terminate the plaintiff’s employment for just cause and without any severance; and
- however, given that the plaintiff had worked at WorkSafe BC for 36 years, he was offering her the option to retire. She would have until 5:00 p.m. the next day to decide whether to do so and if she decided to, she would have to sign a release.
The plaintiff eventually executed the release and accepted a retirement allowance equivalent to 4 months’ pay. She commenced legal action for wrongful termination on the basis that she had been treated unfairly by her employer in the conduct of its investigation, the allegation against her and its decision to terminate her employment for cause.
At trial, the court held that WorkSafe BC had discharged its onus to establish just cause in the termination of the plaintiff as privacy was taken very seriously and that it was well known to the plaintiff that violations of the privacy policy could result in her termination. While the court held that no single incident would be sufficient to establish just cause, the plaintiff demonstrated a pattern of conduct that had the cumulative effect that justified just cause. The court held that the plaintiff was in a managerial role that put her in a position of trust and required her to be a role model for other employees. Her breaches of the Standards of Conduct were serious and not trivial breaches. Trust was a fundamental requirement of the plaintiff’s employment and once it was lost the employment relationship was irrevocably damaged.
Conclusion
This case provides an interesting example of when a breach of trust can justify just cause for termination of employment. Obviously, in positions requiring a higher level of trust and privacy, a breach of trust is going to be treated more seriously than it would be when an employee is in a different type of employment. However, the case demonstrates that termination for cause can result in serious violations of an employer’s code of conduct, policies, and procedures, even without progressive discipline.
Scott Chambers is an Employment and Human Resources lawyer at Doak Shirreff Lawyers LLP. Scott can be reached at [email protected] or 250-979-2527. You can also follow Scott on Twitter at @DSEmploymentLaw and on LinkedIn at www.linkedin.com/in/scottdchambers.