Terminating for Cause? Prove It!

In January 2015, the Ontario Superior Court provided another example of how, as an employer, if you’re going to terminate an employee for cause, you better have a good case backed by solid evidence. The case, Partridge v. Botony Dental Corporation, 2015 ONSC 343 (CanLII), is a relatively simple one. The employee, a dental hygenist, Ms. Lee Partridge, was terminated for cause by her employer, Botony Dental Corporation, after 7 years of employment. On her record of employment and in defence, the Employer alleged versions of the following grounds for termination:

[35] […]

1. Partridge chose to reject her former position as office manager on return from maternity leave, or that she demanded that the office hours be changed; or

2. Partridge systematically harassed coworkers and management; or

3. Partridge acted insolently or displayed insubordination; or

4. Partridge solicited Botony’s employees to open a competing business; or

5. Partridge copied confidential client records for the purpose of establishing a competing business; or

6. Partridge solicited patients for that purpose; or

7. That the removal by Partridge of one or two day sheets constitutes just grounds for dismissal.

The Employer also counter-claimed for $400,000 in lost revenue due to the alleged solicitation and removal of confidential client information(!). After reviewing all of the evidence, the Court concluded that the Employer was able to prove none of these alleged facts to a sufficient degree to justify cause. The Court found that Ms. Partridge had not been given one performance review during her tenure, had received text messages from her employer saying “love you”, “you’re the best” and “I really appreciate all that you do” and had received a raise in the past. In short, there was no documentary evidence in support of the employee’s termination for cause. I can’t neglect to mention that Ms. Patridge had just returned from a maternity leave when she was terminated and that this was determined to be a factor in her termination.

Ms. Patridge was awarded 12 months of pay-in-lieu of notice (less some mitigation) and an additional $20,000 in damages for breach of the Human Rights Code. 12 months is a significant amount of notice for an employee with 7 years’ service – a reality which the Court attributed to her struggles to find employment. However, one can’t help but imagine if the inability of the Defendant to prove any of the allegations and their counter-claim played a factor in the heavier penalty.

Bottom line? It is entirely possible that the Employer could have had a case for cause. However, in court, it doesn’t count if you can’t prove it. Proving it requires documents and facts. I wonder what kind of advice (if any) the Employer relied on in coming to the decision to terminate for cause and then, in deciding to litigate the matter so aggressively. It always helps to talk to a good employment lawyer before making these major decisions… A few hundred dollars of advice in the present can save thousands in the future.