Employer Policies Not Always Enforceable in Court

Written by: Andrew Lawson

Swearing at Co-worker Not Just Cause For Firing

The New Brunswick Court of Queen's Bench considered the effect of off-duty behaviour in Legere v. YMCA-YWCA of St. John. The employee in this case saw a co-worker in public and rebuked her with very strong language. The employer dismissed the employee for cause claiming that her behaviour was expressly forbidden by written policy of the employer.

The court ruled that the employer did not have just cause to terminate this employee. The court found the employee:

• simply asked, although in a forceful way, to be left alone;
• did not add a personal insult to the remark;
• was exercising her right to freedom of expression.

This case illustrates that the courts may not uphold policies of the employer that are found to be unreasonably intrusive or restrictive.

In a somewhat similar case the Supreme Court of Canada came to a different conclusion. In Ross v. New Brunswick School District No. 15 The court found the employer did have just cause for termination because:

• the employee, a teacher, published racist statements over a period of years.
• this behaviour contributed to a "poisoned environment" in the workplace
• there was a loss of confidence in the teacher and in the system.

Ask yourself these questions:

• Is the behaviour harmless self-expression or a deliberate personal insult?
• Is the behaviour an isolated event or does in happen regularly, over a long period of time?
• Is the behaviour likely to cause harm to your organization?

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