Is Termination for Cause the Capital Punishment for Dishonesty?
August 21, 2017
The recent decision of the Ontario Court of Appeal found that a single act of dishonesty by an employee at the time of completing an employment application could give rise to cause for the termination of his employment.
The employee working in the area of atomic energy sought to become employed as an industrial safety specialist. He was required to complete a security assessment prior to commencing employment. In filling out his security questionnaire on a Site Access clearance form, the employee deliberately concealed that he was at that moment in time, actively employed. He omitted information about his current employer.
Shortly after commencing employment and in the context of an investigation, unrelated to the cause for his termination, it was discovered that this gap on the security clearance form had been left. This was, notwithstanding the fact that the instructions on the form required that employees should leave “no gaps” with respect to employment information. The form warned there would be implications for failing to be forthright.
The Ontario Court of Appeal upheld the trial court’s decision that the employee’s act of dishonesty in his completion of the form went to the heart of the employment relationship, and on that basis alone constituted grounds for the dismissal of his employment with cause. The security clearances were found to protect national security. The court went on to say that in this case it was clear that honesty went to the core of the employment relationship and deliberate concealment was an act of dishonesty going to the heart of that relationship.
The Supreme Court of Canada in McKinley v. B.C. Tel. has clearly established however there is no strict or absolute right to terminate for cause in cases of dishonesty. The contextual approach therefore continues to apply. In the case here before the Court of Appeal however, given the security context and the importance of atomic energy to national security, as well as it being in the context of a violation in the principle of honesty from the outset of the relationship, no doubt all contributed to the court’s acceptance that this single act could constitute grounds for termination for cause.
Honesty remains the best policy, but caution should continue to be exercised by employers in terminating for cause should they discover an employee has acted otherwise.
Aboagye v. Atomic Energy of Canada, 2017 ONCA 598