THE LAW MATTERS The Dishonest Employee employee has stopped coming into work, is chronically late, disobedient, incompetent, lazy or suspected of some even worse conduct. For our readers that are employees, please rest assured such calls are very rare!
By Jim Hamilton Legal Services Director
from time to time dealers will call me looking for advice about employment law. I always warn members I’m not an employment lawyer, as the field is highly specialized, and a little bit of knowledge does not go a long way … it can actually be dangerous. You don’t call a plumber if you need brain surgery, so any dealer with a serious employee problem should seek expert legal advice. Having said that, there are some common themes that emerge in the area of employer / employee relations; common sense and guidance from the courts can be most instructive. At its heart, the relationship between employer and employee is grounded in a social contract, "you be good to us, we’ll be good to you". Do your job correctly and competently and we will pay you fairly, provide benefits and security. Usually, when a dealer calls me on this subject, it is because an
The dealer wants to end the employment relationship, but is mindful of whatever pitfalls might lie in wait. Employers are right to be concerned because firing someone for “cause”, as the lawyers call it, can often lead to lawsuits over what is known as “wrongful dismissal”. A recent Ontario Court of Appeal case helped shed some light on how the law might react if an employer fires an employee for just a single act of dishonesty, even when such an act by itself might appear minor. The case is called Aboagye v. Atomic Energy of Canada, and it is relevant to dealers because it arises in a work environment which is regulated, like our industry. Mr. Aboagye was offered a job as a specialist in industrial safety at Atomic Energy of Canada (AEC). The job offer was based on a standard form all prospective applicants fill out about themselves, and which warns the applicant to be fully truthful. In this security questionnaire Mr. Aboagye was asked if he was presently employed, he answered no. It turns out this was not an honest answer as he was employed. In any event, he got the job. Shortly after, AEC began receiving complaints about harassment directed at Mr. Aboagye. AEC began investigating and, in the course of this process, discovered he
had not answered the employment question on his security form truthfully. AEC proceeded to fire him for that reason. Mr. Aboagye sued AEC for wrongful dismissal. He lost. The Court of Appeal upheld the trial decision on the basis that this breach of honesty went to the core of the employment relationship. As the trial judge held, the dishonesty destroyed the trust that must exist between employer and employee. As a regulated industry, selling cars may not pose the potential security threat that nuclear power does, but issues of public safety, consumer protection and professional codes do come into play. This case does not suggest that every minor act of dishonesty will trigger a right to terminate employment. Dealers will still have to weigh, with their professional advisors, the severity of the misconduct against the ultimate consequence of firing someone. As I said earlier, it often comes down to common sense – did the act (or failure to act) go to the core of the employment relationship, causing it to breakdown so seriously, that it could not be repaired? Would a severe reprimand, suspension or warning letter suffice instead? Dealers might confront severe acts of dishonesty ranging from misappropriation of funds, to theft, fraud, or deceit that could justify immediate termination. This case might help guide a dealer’s decision making in that regard.
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