FAQ's Cases - Stewart McKelvey

Page 13...accepting that each dismissal must be examined on its unique facts, andaccepting that reinstatement is available for all acts of misconduct, howevergrave, it must be acknowledged that an act of theft or other dishonesty inthe retail food environment places extreme strain on the relationship. Anemployee who admits dishonesty or is found to have acted dishonestly inthat environment must, as stated, establish mitigating facts consistent witha maintenance or restoration of the essential element of trust. . .[The] authorities acknowledge that dishonesty, by its very nature, usuallyresults in an irreparable compromise of the employment relationship. In theretail food industry the opportunity and the temptation for employees tocommit dishonest acts is great. Thus the relationship is generally acknowledgedas having a fiduciary cast wherein all employees can be takento understand that theft or other acts of dishonesty will invite dismissal.82 82. The Supreme Court of Canada in McKinley v. BC Tel (supra) addressed the issue at para48:at para 49:at para 57:... I am of the view that whether an employer is justified in dismissing anemployee on the grounds of dishonesty is a question that requires an assessmentof the context of the alleged misconduct. More specifically, thetest is whether the employee's dishonesty gave rise to a breakdown in theemployment relationship. This test can be expressed in different ways. Onecould say, for example, that just cause for dismissal exists where the dishonestyviolates an essential condition of the employment contract,breaches the faith inherent to the work relationship, or is fundamentally ordirectly inconsistent with the employee's obligations to his or her employer.In accordance with this test, a trial judge must instruct the jury to determine:(1) whether the evidence established the employee's deceitful conducton a balance of probabilities; and (2) if so, whether the nature and degreeof the dishonesty warranted dismissal.... I favour an analytical framework that examines each case on its ownparticular facts and circumstances, and considers the nature and seriousnessof the dishonesty in order to assess whether it is reconcilable withsustaining the employment relationship. Such an approach mitigates thepossibility that an employee will be unduly punished by the strict applicationof an unequivocal rule that equates all forms of dishonest behaviourwith just cause for dismissal. At the same time, it would properly emphasizethat dishonesty going to the core of the employment relationship carriesthe potential to warrant dismissal for cause.