Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.
An apology can be the difference-maker pointing toward rehabilitative potential, but in the worst misconduct cases, it’ll take more than an a simple mea culpa for an employee to get back their foot back in the door for another chance. Take the recent case of 2023 CanLII 77866 (ON LA), for example. Although the supervisor in that case sought reinstatement and apologized, his actions and other things he said told the opposite story. There are several nuggets of wisdom for employers in this case that touch on the value of an apology, credibility and how it all adds up when an employer thinks about reinstatement.
The employee was a supervisor at a nuclear power generating plant, overseeing a crew of seven employees. In his role, he had access to the company’s payroll and time reporting system, where, if time is entered, it is treated as confirmation that the time was worked.
One of the incidents leading to dismissal was when the employee manipulated the scheduling information for himself and his crew, resulting in more than $10,000 in extra wages being paid to them under fraudulent pretenses.
When he was asked why he did it, he said he thought it was normal, and wanted to entice the guys into working nights. In justification of why he treated himself to extra money, he said he felt all employees should be treated equal. He said it was the cost of doing business when employees are asked to work overtime.
His termination also referred to time theft more generally, there being 12 incidents when he entered and certified time on his timesheet when he was absent from work and bringing a cellphone to the worksite against company rules.
It was against that background that he later apologized to the employer in a written letter, acknowledging his behaviour was unacceptable and didn’t line up with the company’s values. He asked for a second chance.
The arbitrator’s analysis
The arbitrator didn’t mince words, saying the employee’s explanation that what he did was normal strained credulity. Together with evidence the employee tried to cover up his actions, the employee’s misconduct was said to be serious on its own. But when the fact he was a supervisor is added to the mix, along with the fact the system had minimal oversight, that he abused it multiple times, there were many factors weighing against reinstatement.
Offered up for evidence of the employee’s remorse was the apology letter. It just wasn’t enough to tip the scales in his favour. Why? For one thing, he sent the letter more than a month after he was fired. It didn’t show any contrition or an understanding of how serious his conduct was. Rather than offer incredible explanations and maintain them at the hearing, he needed to show real remorse. In short, he offered nothing to show that the employment relationship could be restored.
When facing discipline for significant wrongdoing, employees would do well to fess up immediately and recognize the scope of their wrongdoing if they want to keep their chances of reinstatement alive. When considering the justness of a dismissal, decision-makers look closely at the employee’s rehabilitative prospects. As this case shows, it’s not the mere fact of an apology that counts in an employee’s favour. The apology must show real remorse and understanding of the situation’s gravity. If they seem insincere in their apology or fail to grasp the magnitude of what they’ve done, there’s a good chance their words will ring hollow both to the employer and in the hearing context.