For anyone following Britney Spears, they will know she has had her ups and downs, but so far her various “challenges” have not ended her career. Employees may not be so fortunate when it comes to their errors in judgment and mistakes. When can mistakes end the employment relationship for cause and when must employers absorb them as part and parcel of everyday employment?

While the outcome always depends on the circumstances, here is a snapshot of some cases involving employee errors to help paint a picture as to when termination for mistakes may be an option.

• When the mistake poses a safety risk to others: Take for example the case of an employee who left hazardous equipment on when leaving the workplace and thereby jeopardized the well-being of his fellow employees. While this was an isolated incident, the court held that the employer had reasonable grounds to dismiss the employee as his mistake interfered with and risked the safety of other employees. In this case, the mistake was incompatible with the employee’s duties and effectively ended the employment relationship.(Rankin v. Active Mold and Design (1987) Ltd.)

• When the mistake is a breach of policy and results in damage to the employer: The Ontario Court of Appeal had upheld the just cause dismissal of a long-service employee who was caught driving while intoxicated. This mistake was not only a breach of the employer’s policy, but a criminal offence, and ultimately resulted in the destruction of the company vehicle and in life-threatening injuries for the employee himself. (Dziecielski v. Lighting Dimensions Inc., 2012 ONSC 1877)

• When the mistakes pile up: While one mistake may not irreparably harm the employment relationship, several errors may eventually warrant dismissal. In one case, an employee was disciplined for nine different incidents including carelessness, alleged inebriation, unreported absences, and conflict with colleagues, before being dismissed for cause.  While the trial judge found that none of these errors were on their own sufficient for just cause dismissal, they together were “enough bricks to constitute a just cause wall” and on the whole justified the termination. (Daley v. Depco International Inc., 2004 CanLII 11310 (ON SC))

• When an employee hides or denies their mistake: If a mistake is brought to the attention of an employee, their response can be a key factor as to whether termination is justified. In one case, the trial judge found that the mistake itself did not warrant termination but the employee’s refusal to acknowledge and take ownership of her mistake constituted insubordination that justified the dismissal for cause. On the other hand, where the employee can show remorse and/or a plan to report their mistake, it can mitigate the need for a just cause termination. This was the case recently in an Ontario Court of Appeal decision involving an employee whose mistake constituted a safety breach, but one which he planned on reporting to his employers. (McGachie v. Victoria Immigrant & Refugee Centre Society 2007 BCSC 145 ) (Plester v. PolyOne Canada Inc., 2013 ONCA 47)

As with other forms of workplace misconduct, when considering whether dismissal for cause is warranted for an employee’s mistake, a contextual approach ought to be applied which considers:

• Whether the mistake was accidental or intentional;
• Whether the employee takes ownership of their mistake;
• Whether the mistake goes to the core of the employee’s duties or otherwise repudiates the employment relationship;
• Whether the mistake irreparably harms the business, reputation, and functioning of the employer;
• The employee’s years of service; position; and the occurrence of similar mistakes;
• The overall record of the employee;

Applying these factors (among others) can mean that a response to a mistake does not itself turn into a mistake in termination.

Parisa Nikfarjam