Breaking up is hard to do: lessons from a termination gone wrong

Employees do not always leave on good terms. The case of Booton vs. Synergy Plumbing and Heating Ltd. is a reminder for employers to be careful about how they enforce company policies and how they communicate the departure of an employee to others within the organization.

The plaintiff, Christopher Booton, worked as a service manager for Synergy Plumbing and Heating Ltd. He was terminated after four years of employment when Synergy learned that he was doing jobs on the side in violation of Synergy’s conflict of interest policy. Following the plaintiff’s exit, Synergy’s director told other employees that Booton had stolen from the company because a client alleged they had paid him directly for work done by Synergy.

The plaintiff pursued claims for both wrongful dismissal and defamation.

He alleged wrongful dismissal because he had done work on the side before with Synergy’s knowledge and was not warned that this was inappropriate behaviour. He also said the conflict of interest policy was not brought to his attention or included in his employment contract. Therefore, he claimed his dismissal was without cause and that he was entitled to reasonable notice.

Booton also alleged defamation for the director’s statements to other employees that he had stolen from the company.

His claims were successful. The court held that Synergy should have warned Booton that the side projects were inappropriate before terminating his employment. After termination, the director should have chosen more careful language in describing the reasons for the termination.

Practical lesson: enforcement of workplace policies

In his decision, Justice Gregory T.W. Bowden cited a 1995 precedent that outlined what an employer needed to establish to use the breach of a workplace policy as cause for dismissal:

•the policy was distributed to employees;

•the policy is known to the employee affected;

•the policy is unambiguous;

•the policy is consistently enforced by the organization;

•employees are warned that they will be dismissed for a breach of the policy;

•the policy is reasonable; and

•the breach is sufficiently serious to justify dismissal.

Synergy made what could be an honest mistake – it distributed the conflict of interest policy to all employees at the company – however, this was before Booton was hired. The policy was not given to Booton and was not discussed with him, but was contained in a binder with other policies near his desk. There was also no evidence that Synergy enforced the policy with other employees who had done side jobs.

Had Synergy included a policy review as part of its onboarding for new employees, this misunderstanding could have been avoided so long as it also regularly enforced the policy.

Some employers might not enforce a policy like the one in this case because they want to avoid the hassle, they don’t anticipate a problem or they want to support opportunities for their employees. However, when policies are not enforced, they might as well not exist.

Practical lesson: communicating employee dismissal within the organization

Booton was awarded damages for defamation of only $500. This was for three reasons.

First, Booton could not prove any quantifiable damage from the director’s statements. Second, only a small group of people heard the comments made by the director. Third, the director made the comments out of an honest belief in their truth: he was not being malicious.

Employees are not entitled to the details of a co-worker’s discipline or termination. When sharing the reason for an employee’s departure, it is important to communicate information that is accurate. Synergy’s director was not liable for saying that Booton was dismissed for a conflict of interest or breach of company policy; he was liable for suggesting that Booton had stolen money. The amount of damages for defamation could have been much higher had the allegations of theft made it difficult for Booton to secure new employment or if the allegations had been fabricated or made maliciously.

For example, in Dixon vs. BC Transit (1995 BCJ 1892), an employer leaked information regarding the highly publicized dismissal of an employee to make it appear that there had been just cause for termination when there was no cause. The employer’s behaviour was deceitful, malicious and reprehensible, and the employee was awarded $125,000 in aggravated and punitive damages for defamation.

Speaking negatively about a former employee is never a good look, but it can also be a costly mistake. •

Alissa Demerse is a partner at Roper Greyell LLP. This column was coauthored with Kaitlin Dueck, a summer student at the firm.