"When is a Lie Big Enough to get you Fired", Vancouver Sun

by Janice and George Mucalov

Should you be fired for stealing pens from your office? Is it OK to tell a white lie and book off sick so you can go skiing for a day? What if you do this five Mondays in a row?

When it comes to the workplace, not all lies are the same. Dishonesty in and of itself isn’t enough to justify getting sacked. The magnitude of the dishonesty must be considered to see if just cause for dismissal exists, the Supreme Court of Canada said in a recent case.

Richard McKinley, 48, had worked as an accountant for BC Tel for 17 years. Concerned about his rising high blood pressure, his doctor recommended he take a leave of absence. A couple of months later, McKinley told his employer he wanted to return to work, but in a job that carried less responsibility.

BC Tel initially indicated they would try to find him another position. But while at least two potentially suitable ones came up, they were filled by other employees, and BC Tel subsequently fired him. McKinley sued for wrongful dismissal.

BC Tel argued that McKinley had lied about his medical condition and the treatment available for it. He could have returned to his former position and controlled his hypertension with “beta blockers”. But rather than explain this to his boss, he instead stressed that his doctors felt a change of jobs would be best.

The Supreme Court of Canada noted that McKinley “did not put this information forward as fully and clearly as he might have.” However, given that the beta blocker drugs came with side-effects – increased depression, sexual dysfunction and possible heart failure – it was reasonable to conclude that he truly believed his doctors felt the beta blockers should only be considered as a last resort.

Speaking for the Supreme Court of Canada, Justice Frank Iacobucci said: “Whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship.”

In McKinley’s case, telling his employer he couldn’t return to his former job when he could have (albeit with the help of a potentially harmful drug) – if it was indeed “dishonesty” – wasn’t sufficiently serious to give rise to a breakdown in the employment relationship.

In reaching its decision, the court took into account the principle of proportionality. “An effective balance must be struck between the severity of an employee’s misconduct and the sanction imposed,” said Justice Iacobucci. “Work is one of the most fundamental aspects in a person’s life,” he said. “A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.” Terminating the employment relationship without appropriate notice must not be done lightly.

In cases of theft or serious fraud, there is clear cause for sacking the offender. But for less serious types of misconduct that don’t justify termination, lesser sanctions can be imposed, commented the court. For example, a minor misuse of company property may warrant docking an employee’s pay. (Note this right is limited by legislation in British Columbia.)

McKinley ended up with the equivalent of 22 months’ severance pay, plus an additional four months of pay because BC Tel had engaged in some degree of bad faith or unfair dealing in letting him go (they had fired him while he was on short-term disability and suffering from hypertension and depression, plus they had also reduced their severance offer during negotiations over firing him).

Each case of alleged dishonesty must be assessed on its own particular facts and circumstances. Billing an employer for unauthorized personal expenses, and allowing a co-director’s signature to be traced on a balance sheet, have both been found to be just cause for dismissal. On the other hand, the unauthorized donation of an employer’s bandages and ice packs to a local hospital was merely considered a single incident of poor judgment with no intention to deceive – which didn’t warrant summary dismissal.

As in life, there are no absolutes in law on questions of this sort.

© Copyright by Janice and George Mucalov

A version of this column was first published in the Vancouver Sun. The column provides information only and must not be relied on for legal advice. Consult your lawyer if you need legal advice.