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The problem with knee-jerk reactions: A call for consideration before termination

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Scientifically known as the patellar reflex, a “knee-jerk reflex” is described by Encyclopaedia Britannica as the “sudden kicking movement of the lower leg in response to a sharp tap on the patellar tendon, which lies just below the kneecap.”  In common language, we refer to knee jerk reactions as “reacting quickly and without thought.”

I always encourage my clients to pause before they terminate an employee’s employment no matter how egregious the employee’s actions (or inactions) appear to be.  Trouble – and by trouble, I mean demand letters and litigation – occurs when employers act hastily when ending an employee’s employment.  The key strategy for employers is to resist having a knee-jerk reaction, no matter how egregious the employee’s behaviour.  The employer must consider, document, plan and, only if appropriate, execute the termination.

I read the recent decision in Merritt v. Tigercat Industries, which highlights the issues with a knee-jerk firing of a “problem” employee.

Mr. Merritt worked for Tigercat as a truck driver and material handler from 1998 to 2015 (although there were a few gaps in employment due to layoffs). Tigercat identified four incidents involving Mr. Merritt from 2011 to 2014, which were calling in sick when his daughter gave birth and committing safety violations.

However, on a more serious note, on February 5, 2015, Mr. Merritt was arrested while at work and charged with two counts of sexual assault against minors.  Mr. Crosby, the VP – Operations at Tigercat, met with Mr. Meritt the day after the arrest, but Mr. Merritt refused to discuss the charges and only stated that the charges did not involve Tigercat employees.  Mr. Merritt took a two-week leave of absence.

Just before the end of that leave, a Tigercat employee advised Mr. Crosby that, several years earlier and prior to working for Tigercat, Mr. Merritt had made inappropriate, sexual comments and advances towards her. Later that day, Mr. Crosby met with Mr. Merritt, and advised him that his employment was terminated for just cause because: (a) he failed “to tell…the whole truth” about the charges; (b) he received “extensive warnings and suspensions for his past conduct”; and (c) of the “impact” of the criminal charges on Tigercat and its employees.

Mr. Merritt launched a wrongful dismissal action against Tigercat and brought a motion for summary judgment.  The judge found that there was no just cause to terminate Mr. Merritt’s employment and awarded him ten months of pay in lieu of notice. It was clear from the decision that the judge found that Tigercat had bungled the termination.

I would characterize the firing of Mr. Merritt as a knee-jerk termination riddled with missteps.  What mistakes did Tigercat make?

–           It is without question that the charges against Mr. Merritt were serious. Tigercat was right to consider the impact of those charges on the workplace, but criminal charges alone do not justify a termination for just cause. Charges are not the same as convictions (see Jason Beeho’s recent blog on this topic) so it was wrong for Tigercat to assume guilt.

–           Tigercat did not conduct an investigation regarding the criminal charges against Mr. Merritt or the co-worker’s allegations of past misconduct, which was fatal to Tigercat’s reliance on those matters as just cause. If Tigercat had conducted an investigation and either obtained admissions or made findings that Mr. Merritt was not credible, the charges may have provided the basis for just cause.

–           It’s obvious that the criminal charges and the co-worker’s allegations were the real impetus for the termination. The strategy of “piling on” different allegations against an employee to strengthen the case is not well-received by courts. It indicates that the employer is not confident in the strength of its own position.

–           In this case, the other “piled on” allegations – dishonesty and poor performance – were not strong.  It was a mistake to cite them as reasons for termination.  Specifically:

–     If you can’t prove dishonesty, don’t allege it.  Mere speculation about dishonesty isn’t sufficient to ground a just cause termination.  While Mr. Merritt declined to discuss the charges, this was not dishonest or improper.  Further, Tigercat did not (either before the termination or at the motion) establish that the employee’s allegations were true and thus it could not show that Mr. Merritt had been “dishonest” about the allegations.  Courts take allegations of dishonesty very seriously, and respond harshly when those allegations are made but not proven.

  • Even if dishonesty is established, not all dishonesty gives rise to just cause. That dishonesty must be so significant that it goes to the heart of the employment relationship.  In this case, the dishonesty, if any, was situational and unrelated to Mr. Merritt’s employment duties.
  • With respect to the poor performance accusations, stale-dated misconduct cannot be “revived” to justify a termination. If the employer condoned or ignored the misconduct at the time or if the cumulative effect of the incidents is not serious, it will be difficult to justify the “capital punishment” of discipline (i.e. termination) over other, lesser sanctions.
  • While there were certainly indications that Mr. Merritt was a problem employee, Tigercat failed to “paper” the issues with Mr. Merritt’s performance.

While it can be tempting to act swiftly in response to perceived employee misconduct, the knee-jerk reaction can mar an otherwise valid termination.  Mr. Merritt’s termination wasn’t well-thought out and it cost Tigercat dearly.  Careful consideration before a termination is the best way to prevent a Merritt-like decision against your organization.

Jennifer Heath

About the Author: Toronto Employment Lawyer Jennifer Heath is an enthusiastic lawyer who is dedicated to improving the health and productivity of her clients’ workplaces. Jennifer advises clients on a wide range of common law, contractual and statutory obligations, including those obligations under the Employment Standards Act, 2000Labour Relations Act and the Human Rights Code.  Her work also involves representing clients before the Superior Court of Justice, the Small Claims Court, the Human Rights Tribunal and the Ontario Labour Board.