THE EMPLOYERS' EDGE
Ontario Court Upholds For Cause Termination of Employee With 20 Years of Service
In Park v. Costco Wholesale Canada Ltd., 2023 ONSC 1013 the Ontario Superior Court of Justice upheld the employer’s for cause dismissal of an employee with over 20 years of service.
The employee, 43 years old at the time of dismissal, was employed as an Assistant Buyer. The employee created a website for the Toys department which allowed users within the department to easily share files with one another. The employee developed this website during work hours and there was no dispute that this website was Company property.
After being transferred to the Lawn and Garden department (at the employee’s request following protracted conflict with his current manager), the employee received an email from management requesting that the employee grant management access to the website and also change the ownership of the website to the managers.
In response to this request, the employee deleted the website and sent an email to management advising them that he had deleted the website and stating that he believed no one was interested in using the website. Management sent a reply email where they wrote “… you need to ask your buyer before removing something from the system that other people have the ability to use”.
The employee replied with the following email:
I was using the site for my use, no one was interested, the container sheets were having to be updated on the drive not the site....exactly how many times should I be asking for an update, can I not trust in my managers to be able to get back to me in a timely manner and not ignore my requests?
They need to take some ownership and responsibility.
Jason replied in Jan, saying he would look at it when he got back from China...maybe you need to review with your managers how to manage their workloads...I shouldn’t have to babysit and always have to do the follow-up.
Shortly after the deletion of the website, the employer was able to restore the website. However, the employee deleted the website once again because he believed that he had not deleted the website properly and was unaware that the employer had restored the website.
The employer conducted an internal IT investigation regarding the deletion of the website and found that the employee had deleted the website twice. The employer then dismissed the employee for cause. The employee subsequently commenced a wrongful dismissal action.
The Court’s Decision
The Court dismissed the action and found that the employer had cause to terminate the employee’s employment. The Court found that the employee committed four deliberate acts of misconduct: the employee’s deletion of the website, the employee sent two insubordinate emails to management, and the employee’s deletion of the website for a second time.
The Court wrote:
… I find that the second deletion constituted deliberate destruction of Costco property and amounted to an act of insubordination under s. 19(a) of the Employee Agreement. I further find that Mr. Park acted dishonestly when he failed to notify anyone of his second, permanent, deletion of the website (para 68)
The Court found that the employee’s actions amounted to willful misconduct and that dismissal was an appropriate response in the circumstances given the employee’s misconduct, his position, the degree of trust placed in the employee, and the language contained in the employment agreement. This meant that the employer was not entitled to statutory termination and severance pay under the Employment Standards Act, 2000.
The Court also dismissed various claims of improper treatment and breaches of the Human Rights Code in terms of the plaintiff’s treatment during the investigation process and up to the time of his dismissal.
This is welcome decision for employers and demonstrates a circumstance where a dismissal for cause is appropriate. The team at CCPartners can assist employers experiencing difficulty navigating their termination obligations, with expert legal advice and ways to minimize liability. Please contact one of our lawyers who can assist with all of your workplace concerns.
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