Canadian employers often assume that any misconduct is ample cause to fire their employees. They are generally mistaken. This is the story of one employer who learned this lesson the hard way.

Having worked for the same ownership at Regina-based Image 1 Hair Team for 22 years, hair stylist Lenna Bohay was shocked to learn that the salon’s owners had sold the businesa to another stylist, Kelly Brown. Bohay and Brown were no longer friends, and the sale meant that she would lose a number of health benefits she had been using.

Upset at the sale and distraught about her personal life, Bohay was overheard griping about the sale and Brown’s ability to run the salon. When Brown learned that Bohay was not taking the news well, she confronted her. The two met after work and Bohay denied mocking the sale, explaining that she was having family problems. In her explanation, Bohay used the “f-word” a number of times, even directing it towards her new boss. According to Brown, Bohay told her to “f-off.”

Believing that Bohay’s profanity and attitude provided ample cause to dismiss her without warning, Brown immediately fired her. Bohay struck back with a wrongful dismissal lawsuit.

At a recent trial in Saskatchewan, Bohay's lawyer argued that Bohay’s comments did not justify her dismissal since her outburst was isolated and she had not been previously warned. The judge agreed.

The salon had an obligation to consider Bohay’s situation, including her otherwise stellar employment record, her personal problems and testimony that her outburst was out of character. Further, for profanity to justify her dismissal, the court stated that Bohay had to be first warned. Instead, the salon had acted too quickly in pulling the trigger on Bohay’s termination and with it, had to pay damages to an ex-employee.

Failing to provide a warning before dismissing a long-term employee can carry an expensive price tag for Canadian employers. Courts will consider the nature and degree of misconduct to determine whether dismissal without pay is justified. Employers and employees should take note of the following advice:

 


  • It is only the rarest misconduct, such as theft or dishonesty, that warrants dismissal without appropriate warnings.

  • Profanity and rudeness must be addressed by corrective discipline, which is a gradual series of warnings.

  • Consider mitigating circumstances. Courts are more forgiving when misconduct is out of character.


– Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com