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Proper Investigation should be conducted before employee is fired

There are many reasons why employees could find themselves without a job. One reason which often arises in the context of dismissals for just cause is where the employee is accused of being dishonest with the employer. Of course, what constitutes just cause for dishonesty on the job varies depending on all of the surrounding circumstances.

An example of dishonesty on the job can include an employee inaccurately reporting hours worked. Specifically, employees who claim that they worked more hours than they really did.

Recently, this reason was put forward by an employer as their justification for terminating a long-service employee, allegedly, for just cause. The British Columbia Supreme Court decision of Mr. Justice Myers is reported as Johnson v. Marine Roofing Repair & Maintenance Service (2003) Ltd., 2015 BCSC 472.

The Plaintiff, Bob Johnson, was a 65-year-old man who worked as a manager of a Vancouver business. When he was confronted by his employer about allegations of inaccurate reporting of his hours, he gave an explanation for the way the hours were recorded and offered to repay his employer for the extra time. Instead, his employer gave him a letter of termination that provided Mr. Johnson the opportunity to quit and receive eight weeks of pay. If he did not accept that offer, he was told he could be fired for cause. Of course, if terminated for just cause, he would not be eligible to receive Employment Insurance benefits or severance. Mr. Johnson's employment was terminated after he failed to accept the offer of 8 weeks' pay and he commenced an action for wrongful dismissal.

Mr. Johnson - represented by Cameron Wardell, an associate lawyer at Overholt Law - was successful in that action. The Court found that the employer did not have cause to terminate Mr. Johnson's employment and awarded Mr. Johnson 24 months pay in lieu of notice, the oft-recognized upper limit of notice awards. In addition, Mr. Johnson was awarded aggravated damages totalling $10,000.

This case involves many lessons for employers and employees alike, but it adds in particular to the growing jurisprudence around an employer's failure to properly investigate prior to the termination of an employee's employment. Employers must take caution to properly investigate their allegations of just cause and give the employee at issue a fair opportunity to respond. Calling a sudden meeting where the employee is confronted with "evidence" of cause without notice and expected to give a full explanation will often be viewed as unfair. 

Seeking legal advice before hastily proceeding with a termination is often a prudent measure that can save an organization from risky litigation down the road. Also, if there is any concern over the ability of the investigator to be impartial, an employer is advised to consider hiring an independent person to investigate.

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