When Workplace Dissatisfaction Becomes Just Cause For Dismissal

Business In Vancouver: Legal Matters - Issue 987

Column: “Employment Issues” - September 27, 2008

Written by: Robert Yeager

How Criticizing Your Boss Becomes Just Cause:

When does expressing in the workplace dissatisfaction with one’s boss turn into just cause for dismissal?

Two decisions of the BC Supreme Court issued 10 days apart tell us something about the answer.

In the first case, while criticism was definitely levied by the subordinate against the boss, the facts of that case prevented the employer from successfully claiming just cause. In the second case, the criticism was written and the employee was found to have given the employer just cause for the dismissal.

In the first case, the employee had openly partaken in verbal criticism of his boss the CEO, in the presence of other employees. In fact, the employer was a small company consisting of 5 employees and an investor. The employee had criticized the CEO in front of the investor at a point in time where the investor was considering a controlling investment that was necessary to the survival of the employer. The employee, in the presence of another employee, told the investor that he thought the CEO was not fulfilling his role as Chief Executive Officer and had not delivered in time of need. The employee did not say he could not work under the CEO. The investor, because he was part of the operation, had already formed his own conclusions about the CEO that happened to be the same as those stated by the employee.

The How of The Criticism Is Just as Important as the What

While it could provide just cause for a subordinate to openly criticize his boss amongst fellow employees and important clientele or investors particularly at a sensitive time, and this employee clearly did so, in this case, it was held that the criticism was not sufficient for just cause. The employer was a small office of people who routinely exchanged discussion, the criticism of the boss came as no surprise to the employees or the investor, differences of opinion were bound to be stated and overheard by others in a small office, and since the investor had already formed a similar opinion of the CEO to the one stated by the employee, it could hardly be said the investor refused to increase his investment based on what the employee said.

In the second case, the employee went on medical leave because of a situation at work involving her boss. While on medical leave and without first speaking to her boss, she wrote an email to the board of directors of the employer and the boss that was highly critical of her boss. In the email, she stated that she “has been compromised in every regard and cannot function in the current climate”, her “position…has been compromised by [her boss’s] unilateral actions”, her boss had “become irate with” her, she could accordingly “no longer take responsibility for the work of others since [her] hands have been tied” by her boss, she accused her boss of having a “stated intention to violate a client’s right to confidentiality, this in turn compromising the confidence I had built with my client”, and such. The general gist of the email pointed to her boss’s inability to manage and his perceived serious character flaws.

The employer took this email to be a resignation, and in any event provided just cause for termination, chose to accept it as a resignation, and brought the employment to its end.

The court rejected any idea that the email was a resignation, ruling that clearly the employee was crying out for help and wished to provoke further dialogue, thus supporting an intent to continue working. However, the court found that the content of the email constituted such severe criticism, and that this criticism was levied in a way that was designed to undercut the boss in the eyes of the board, that it constituted just cause for the dismissal. The court said the content and the method of delivery of the email destroyed the employment relationship. The court found that it was incumbent on the employee to first have gone to the boss to attempt to work things out if possible before she projected her conclusions to the board. To fail to do so destroyed the working relationship between her and her boss. The court also found the content of the email to be disrespectful, pejorative, and unnecessarily inflammatory. Both the content of the email, and the method used to deliver it, constituted just cause, each on their own.

So what is to be gleaned? First, the employment relationship remains one of master-servant even in these modern times, and the master is entitled to be respected. Second, it is wise to keep one’s own counsel, and at the least, avoid putting words in writing that come back to hurt you. If you are having difficulties in the workplace, obtain the guidance of an employment lawyer. Third, end runs around the boss are never a good idea if you plan on a long career.

As with all decisions in wrongful dismissal cases, everything turns on the facts, and there are almost limitless permutations of fact patterns.

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