By Andres Barker, Lawyer.
Last year around this time, we blogged about the Court of Appeal’s conclusion in Steel v. Coast Capital Savings Credit Union that the employer had just cause to fire an employee who accessed a document in her manager’s personal folder. Both a majority of the Court of Appeal, and the trial judge before it, considered the employee’s unique position of trust in an industry where trust was of central importance, as well as the clear written policies that expressly prohibited the employee from engaging in the impugned actions.
The Court of Appeal’s decision was somewhat surprising in that it enforced a “one strike” policy for a seemingly minor infraction against a longstanding employee with no discipline history, something rarely done and which even resulted in a minority dissenting opinion from the Court. The Steel case left many employment lawyers in British Columbia unclear about how subsequent courts would apply the Court’s reasoning. A serious concern for plaintiff’s counsel was whether Steel would “lower the bar” for establishing cause.
Fortunately, the BC employment bar did not have to wait long for an answer, as the employer in the recent BC Supreme Court case of TeBaerts v. Penta Builders Group Inc., relied on Steel to advance its just cause argument.
TeBaerts v. Penta Builders Group: Steel Revisited
Ms. TeBaerts was responsible for managing her employer’s files on the server. After another employee of Penta left the company, Ms. TeBaerts deleted some files relating to that employee from the server. When the employer discovered the deletion, Ms. TeBaerts had the files recovered. The employer subsequently fired Ms. TeBaerts for multiple reasons, including the file deletion.
At trial, the employer argued that Ms. TeBaerts had deleted the files in retaliation for an alleged workplace conflict, which it claimed was worse than the actions of the plaintiff in Steel. The trial judge rejected this argument, finding that there were a number of justifiable reasons for removing the files and, to the limited extent Ms. TeBaerts was motivated by negative feelings, she made an error in judgment. The court also explicitly distinguished Steel, noting that Penta had no policies or procedures in place regarding computer use, including organizing or removing files, and that Ms. Taeberts’ actions were not motivated by personal gain. As such, the court failed to find there was just cause for the employee’s dismissal.
Each case relating to just cause must be decided on its own merits and on the basis of its own factual matrix. As the recent decision in TeBaerts shows, where an employer wishes to dismiss an employee for breach of trust, the employer will need to show that:
• managing or protecting confidential information is inherent to the employee’s position;
• it has written policies and procedures regarding management, accessing, or deletion of confidential information; and
• there was some form of personal gain to the employee inherent in their actions.
Implications for Employers and Employees
When read together, the decisions in Steel and TeBaerts offer a number of lessons for both employers and employees:
• Employers: When it comes to confidential and/or sensitive information, employers should create clear policies and procedures and ensure that employees read and understand them. Where an employee is in a position of trust relative to sensitive information, additional expectations and requirements should be included in their employment contracts.
• Employees: For employees in positions of trust, it is important to keep in mind that there is a very high standard of behavior expected in the performance of your duties, and a simple error in judgment can result in justified dismissal without notice.
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