If the Toronto Transit Commission’s tension-filled trifecta of management, workers and riders has become a case study in workplace and customer service dissonance, a recently released memo to employees from the TTC general manager Gary Webster reveals a textbook example of a boss reaching the end of the road over "unacceptable operating discipline."
In it, he stated that, "employees need to be held accountable for their poor performance" and that he was "not proud of what we have been dealing with over the last several weeks."
Wrote Webster: "We are in the customer service business, but some of the behaviour our customers have encountered recently would suggest otherwise."
He didn’t have to cite examples. Two generated a media storm and prompted angry calls into phone-in radio and TV shows in Canada’s largest city.
Early in the new year, a TTC rider snapped a widely publicized photograph of a subway ticket taker—identified as George Robitaille, a 55-year-old, near 30-year veteran TTC employee who reportedly takes special medication after undergoing a heart procedure last summer—sleeping on the job. (More photos of other snoozing TTC workers have since ended up in the hands of Toronto media outlets.)
Then, in late January, an unidentified TTC driver left passengers cooling their heels on his bus for seven minutes when he went to a doughnut shop to use the bathroom and buy a drink. A rider preserved that unscheduled employee break on video, which was posted on YouTube. The driver was later suspended. (Robitaille, who later apologized for dozing on the job, told the Toronto Sun that the issue had been "resolved," but would not comment on whether he had faced any discipline.)
These incidents might have caused public relations problems for the TTC (also embattled by the sex scandal of its chairman, City Councillor Adam Giambrone, who was forced to abandon his mayoral bid as a result of his self-acknowledged personal indiscretions).
But the workplace-related TTC employee missteps serve as "good segues in reminding employers what they need to be aware of when faced with apparent misconduct on the part of employees," says Stuart Rudner, a partner in the labour and employment group at Miller Thomson LLP in Markham, Ont.
The ultimate penalty—just cause for dismissal—is viewed in legal circles as the "capital punishment of employment law" when a fired employee contests the disciplinary action. The onus falls on an employer to show that an employee engaged in misconduct that "irreparably harmed" the employment relationship to the point that termination is justified—regardless of whether photos or videos exist that illustrate wrongful behaviour, according to Rudner.
He explains that courts—and in the case of a unionized workplace, such as the TTC, arbitrators—take a contextual approach when determining whether misconduct should result in dismissal for cause.
"They look at the entirety of the employment relationship—the length, the nature of the employee’s position and duties and the amount of trust required, any prior discipline—and have not set out any hard and fast rules for summary dismissal," says Rudner. He points out that unionized collective agreements may identify specific penalties related to misconduct, such as a warning for a first occurrence followed by suspension and ultimately dismissal.
But employers need to ensure they have a "zero-tolerance policy" toward employee infractions and not have inconsistent standards, warns veteran employment lawyer Howard Levitt, counsel to Lang Michener LLP in Toronto.
"If something isn’t disciplinable for one employee, it can’t be for another employee," he explains. "Differential treatment is a defence, and courts or arbitration boards will be very sympathetic to that."
In instances of apparent employee misconduct, an employer must also conduct an investigation and obtain the employee’s side of the story.
"After someone sees a lawyer, they might come up with a better explanation for the situation," says Levitt, who writes on employment law for the Financial Post section of the National Post. "But if the employee already explained to the employer why he or she did something, anything they say afterward could damage their credibility."
Rudner says that often, the employee’s behaviour during investigations will determine whether a summary dismissal was justified.
In researching just cause for dismissal cases in Canada, he found that courts and arbitrators look at how the employee responded when confronted with an allegation of misconduct.
"In many cases, it can be the difference between a finding of just cause and a finding that a dismissal without notice or severance was excessive," he explains. "A dishonest employee is less likely to be given a second chance than one who admits to wrongdoing and offers suitable apologies and assurances that it will not happen again."
Similarly, in the overall context of employee misconduct, two workers found guilty of the same transgression may be dealt with quite differently, says Rudner.
For instance, two cashiers are caught taking $10 out of the till at a store and both are fired. One has worked there for 10 years and has a spotless employee record. The other has only been an employee for a month and has already been twice disciplined. If both terminations result in wrongful dismissal cases, the courts are likely to extend more leeway to the veteran employee and uphold a summary dismissal for the recent hire.
"The prevailing view is that for the last few decades, the courts have tended to be more inclined to protect employees," says Rudner. "But in the last couple of years, courts have started to shift to a more practical perspective and appreciate some of the difficulties employers face."
He says that while some employers and lawyers representing them "have decided in their own minds that pursuing a defence against a dismissal is a lost cause, there are dozens, if not hundreds of cases where courts have said that whatever an employee did was sufficiently egregious that he or she should have been fired."
For example, in Obeng v. Canada Safeway Limited, [2009] B.C.J. No. 10, Eric Obeng, an assistant manager at a Safeway store in B.C., was fired for cause after he was accused of stealing groceries and later lied about it when confronted by senior management.
B.C. Supreme Court Justice Elaine Adair concluded that while there was insufficient evidence that Obeng stole merchandise, he "breached the implied duty of honesty and faithfulness owed by him to Safeway." As a result, his "dishonesty in relation to the investigation of his conduct" justified his termination.
Rudner adds that courts or arbitrators will also uphold summary dismissals in situations of off-duty employee misconduct.
For instance, in August 2008, an Alberta arbitration board upheld the dismissal of a provincial government employee who was fired after posting derogatory descriptions and criticisms of colleagues and supervisors on blogs she created, and showed no remorse after management confronted her with the blog contents. The board ruled that "in expressing contempt for her managers, ridiculing her co-workers and denigrating administrative processes," she "engaged in serious misconduct that irreparably severed the employment relationship, justifying discharge," and dismissed the grievance filed by her union.
In Kelly v. Linamar Corporation, [2005] O.J. No. 4899 (Ont. S.C.), the Ontario Superior Court addressed the issue of when an employer can prove just cause in terminating an employee charged with, but not yet convicted of, a crime of moral turpitude outside the workplace.
Philip Kelly, a supervisory employee with a subsidiary of Linamar (the largest employer in Guelph, Ont.), was fired in early 2002, pleaded guilty to possessing child pornography in September 2003 and was given a three-month conditional sentence two months later.
But in Kelly, Justice Casimir Herold cited Linamar’s philanthropic work with young people and wrote that the company "was entitled to take reasonable steps to protect such a reputation" and "demonstrated just cause on far more than the balance of probabilities."
While Kelly’s conviction and Linamar’s identity as his employer "became a matter of public record" after he was fired, his termination "was justified both on sound business principles and also as a matter of law."
Rudner says that when addressing possible employee misconduct, employers should follow a two-step process.
"They should first confirm that the employee did in fact engage in misconduct, and then put that into context when assessing whether the misconduct irreparably harmed the employment relationship."
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