Termination for Cause: How Serious Does the Transgression Have To Be?

Written by litigator and mediator Irvin Schein and originally published at irvinschein.com. 

The recent case of Sinnathamby v. The Chesterfield Shop Limited (case and endorsement) provides a useful reminder of the very high threshold to be met by an employer terminating for just cause.

In this case, the Plaintiff had been a 14-year employee of the Defendant. On September 10, 2010, she called in sick. Three days later, her supervisor telephoned her to discuss her absence and she apparently indicated that she was ill, without any indication of when she might be able to return to work. She did not return to work. On October 4, 2010, she was fired because she had failed to provide notes from her doctor supporting her continued absence from work as required by the Defendant’s written policy.

Immediately after her October 4th termination, she faxed to her supervisor three doctor’s notes dated September 10, 17, and 27, 2010. The first note indicated that she was unable to work but that she may be able to return to work on September 20th. The other notes did not specify a return date.

The Plaintiff brought a motion for summary judgment. There were significant disputes between the parties as to what had taken place between September 10th and October 4, 2010. Nevertheless, the Judge concluded that, based on the evidence that was before him, he was able to make a final ruling on the matter and he proceeded to do so.

The Plaintiff claimed that she had telephoned her supervisor on the evening of September 9th to indicate that she was ill and would not be coming in to work the next day. She claimed that she had made additional telephone calls to him and left a series of voicemail messages, describing her medical circumstances. She testified that she had a number of conversations with her supervisor, in which the supervisor demanded that she either return to work or provide a doctor’s note specifying a return date because no other doctor’s note would be accepted. She denied any knowledge of a company policy about doctor’s notes.

The supervisor denied that any communications had taken place at all, other than a telephone call on September 22nd in which the Plaintiff was told that a doctor’s note would have to be provided to support her absence. According to the supervisor, there was no discussion as to what the doctor’s note had to say. On October 4th, not having heard back from the Plaintiff, the supervisor called the Plaintiff to say that because she had not provided a doctor’s note, despite the request and in breach of the company’s employment policy, her employment was being terminated for cause.

The Judge reviewed the facts carefully and made the following findings. Firstly, he accepted the fact that the company had a policy about doctor’s notes and, furthermore, that this information had been conveyed to the Plaintiff when the supervisor specifically asked her for a doctor’s note. He rejected the Plaintiff’s evidence that she was never told of this policy. He also believed the supervisor’s evidence that at no time did the Plaintiff actually explain to him the nature of her illness or indicate that she had in her possession a doctor’s note saying that she could return to work on September 20th.

The Judge accepted that the Plaintiff was sick when she called in sick, but that she had failed to provide doctor’s notes notwithstanding her supervisor’s request until after she had been fired.

However, that was not the end of the inquiry, notwithstanding the fact that she had been fired for failure to provide medical documentation contrary to a specific policy and a request from her supervisor. The question that had to be answered was whether or not that the Plaintiff’s conduct was sufficiently serious to justify dismissal without notice. Depending on the circumstances, an employer must consider alternatives to summary dismissal without notice before terminating for cause. A balance must be struck between the severity of an employee’s misconduct and the penalty.

The essential question is whether or not the employee has engaged in misconduct that the Court of Appeal has defined as “incompatible with the fundamental terms of the employment relationship”. If misconduct is sufficiently serious as to strike at the heart of the employment relationship, termination with cause is justified. As a result, the Court has to determine the nature of the misconduct, consider the surrounding circumstances, and then determine whether or not termination is a proportional response.

In this case, the Plaintiff did nothing illegal or dishonest. She called in sick when she really was sick. While the Defendant’s request for a doctor’s note was quite reasonable, there was no evidence as to the consequences to this Defendant of the doctor’s note being provided several weeks late. While the Plaintiff disobeyed a reasonable company policy and a direct request from a supervisor, her failure to provide a doctor’s note in a timely way was not an essential condition of employment and her failure to do so was not a breach of faith or trust inherent in the work relationship. Accordingly, her summary dismissal was disproportionate to her misconduct.

The Judge then went on to assess damages on the basis of the notice, or pay in lieu thereof, that the Plaintiff should have received based on her tenure and all the other usual factors.

It is clear that the mere breach of a company policy will not be sufficient to justify a summary dismissal. The breach must be inherently serious and there must be some evidence before the Court as to the consequences of the breach for the employer before a termination without notice will be justified.