We often see cases in our office where an employer has to deal with an employee who has behaved in outrageous fashion. Examples are: drinking or consuming recreational drugs at work; assaults of other employees or customers; and extended absence without prior explanation.
The gut reaction of most employers is to terminate the employee in question without much inquiry into the background of the conduct. The employer is more likely to dig into the reason behind the bad conduct if the employee has a sterling employment record.
Judges, adjudicators, and arbitrators in enforcing our employment and human rights laws expect employers to treat all employees as they would the employee with the sterling record. In other words, the law does not allow an employer to seize upon an incident in an unquestioning way to justify a termination.
The reason for this development in our law is that much of the conduct described above can be caused by a momentary lapse of judgment or be directly related to a disability on the part of the employee. It is rare that any of the conduct described above is intentional and/or premeditated. Consider the example of a long-term employee who upon receiving news of the death of his best friend consumes too much alcohol and then makes an error in judgment like engaging in an abusive verbal attack on a co-worker. This would be an example of a momentary lapse in judgment which would not necessarily justify an immediate termination. The more appropriate response would likely be to investigate the circumstances behind the verbal assault and either offer assistance to the employee to overcome his grief or what might be an alcohol problem (disability). A warning might also be appropriate.
Another example may be an employee who one day “snaps” in the workplace and assaults another employee. The employee unbeknownst to the employer has a bipolar disorder and the aberrant behaviour resulted from the employee deliberately or inadvertently ceasing his or her medication. Rather than terminating this employee, the employer has a responsibility to reasonably investigate and likely accommodate the employee by working with him or her to prevent such an occurrence in the future.
Employees who unreasonably refuse to participate in an accommodation process will not be protected by the law. In the examples above if either employee unreasonably refused to take part in measures designed to assist them and to prevent the aberrant behaviour termination may be justified.
Employers who jump the gun and terminate an employee without proper investigation may be liable for damages under human rights legislation or our common law. In some cases the terminated employee would be entitled to reinstatement in addition to damages.
The bottom line is that employers should take reasonable steps to understand an employee’s motivation and the circumstances leading to the bad behaviour before making the decision to terminate the employee. This is particularly true where the employee’s conduct is unusual or unexpected in relation to their history with the employer.
