The courts are becoming increasingly tough on employers who make unsubstantiated allegations of cause when terminating or dismissing an employee. This trend is continued even in cases where there is a potential case for discipline but no record to back it up.

The recent decision of an Ontario Court in Maier v. Copp Building Materials Ltd. 1 confirms the stringent test imposed upon employers. Put simply, employers are presumed to no longer have a cause argument unless they can come up with compelling evidence to prove their case.

Randy Maier worked as a drywall carrier for Copp Building Materials from April 21, 2003 to October 18, 2004.

On September 30, 2004, less than three weeks before Maier was fired, the company conveyed a health and safety meeting. When a report of the meeting was made, one of the items noted was Maier's alleged "negative attitude.”

The meeting minute notes stated as follows:

". . . coworkers complained that there was concern with Randy's negative attitude towards his job . . . however negative behaviour and attitudes have never been tolerated in the past, nor will this be tolerated in the future.”

While the employer kept a record of what happened at the meeting, it later attempted to improperly rely on this record as constituting a warning with respect to Maier's absenteeism. In particular, although the company was concerned about Maier being excessively absent in comparison to other employees, the notice and meeting only discussed the alleged attitude problems, with no specifics.

Just one week after the meeting, on Oct. 8, and again on Oct. 15, both of which were Fridays, Maier did not show up at work. Instead, he called in "sick" despite later admitting that he was not actually ill on those days.

When the employer decided to examine payroll records, it learned that Maier had had 12 complete days of absence in 10 months, with five of these being on Fridays.

So, on his next day at work, Monday, Oct. 18, Maier was fired for cause. The sole reason set out in the termination letter was described as "a pattern of unscheduled time off.”

Despite the admissions by Maier at trial that he was not always sick on the days that he had been absent, his wrongful dismissal suit was allowed.

The court accepted Maier's explanation about the absences, which was that he planned to be absent on days when he believed he would be assigned work he considered dangerous. The court was likely influenced by the fact that there was no fraud involved since Maier had not been paid for the days when he called in sick.

In allowing the claim, the court said there was no persuasive evidence that the company had ever warned Maier about his excessive absences. Indeed, the memo of
September 30 concluded the court, "was used to mention negative attitude but even it did not hint at absenteeism as a problem.”

The court also focused on the fact that the company had a policy that required written warnings to be sent to employees.

Instead of producing any such warnings, the employer offered a vague and unsubstantiated claim that it likely had "maybe two" incidents of "verbal talking" without there being any records of these discussions.

When examining alleged misconduct and ensuring that they cannot be sued for wrongful dismissal, employers need to answer the following questions:

1. How serious is the incident in the eyes of an outside observer?

2. Has the behaviour undermined the employee's credibility in the workplace or his or her ability to do his job effectively?

3. Has the employer suffered financial losses, lost reputation or have its interests been damaged by the conduct?

4. Can the incident be overcome or has the employment relationship been irreparably harmed?

5. Are their any mitigating circumstances, such as personal issues that may have affected the employee?

6. Does the punishment of termination reflect seriousness of the offense?

7. Are there any company policies or rules that the company can point to as having been breached?

George Waggott is a lawyer with Lang Michener LLP. His practice includes advising employers on all aspects of employment and labour law. He also acts for executives on employment law matters. Reach him at 416-307-4221 or gwaggott@langmichener. ca.