Recently, Zubas Flett Lawyer, Ted Flett, spoke with Jeffrey Smith of Canadian HR Reporter. The opinion piece, which discussed the importance of having good policies in place and conducting a good investigation prior to terminating an employee, is below.
‘Where this particular [employer] fell short was in the credibility of the witnesses’
An Ontario employer may have been “too hasty” in pulling the trigger when it fired an employee for just cause, says a Toronto employment lawyer, in looking at a recent decision.
The company must now pay the former worker almost $20,000 — which isn’t surprising given the employer’s weak attempt at investigating allegations of the employee’s misconduct, says Ted Flett of Zubas Flett in Toronto.
“The decision is critical of the employer’s decision not to speak with the employee or to formally investigate before proceeding with the dismissal,” he says. “It’s incumbent upon an employer to ensure that the employee meets the definition of termination for cause in terms of measurement of the conduct before they pull the trigger — it appears the employer’s decision may have been a little too hasty in this case.”
Tow truck operator at airport
Adam Mazanek, 44, worked as a tow truck operator for Bill & Son Towing (BST), a small towing company based in Etobicoke, Ont.
BST had a contract with the Greater Toronto Airport Authority (GTAA) to provide towing services at Toronto’s Pearson International Airport. His job duties included towing abandoned or illegally parked cars at the airport to a GTAA compound and helping customers with services such as car boosts and empty gas tanks.
There was always one main BST truck on duty at the airport. Sometimes a second truck, called a scooper truck, was needed as well. The company had one gas card used by all four of BST’s drivers to refuel the tow trucks.
In 2016, BST reviewed fuel consumption for the main truck because the company wanted to determine if the GTAA contract was profitable. It was discovered that the main airport truck was going through an unusually high of fuel compared to similar trucks used for non-airport jobs.
Management spoke to the four drivers who worked at the airport about the main truck’s high gas consumption and they said that it spent a lot of time idling; afterwards, the truck’s gas consumption decreased.
BST continued to monitor gas consumption and found irregularities in gas purchases. Gas usage was compared to the dates that the four GTAA drivers worked, although exact times weren’t examined. It also wasn’t cross-referenced with when the scooper truck operated.
A fair and comprehensive investigation into workplace misconduct can go a long way towards reducing employer liability, says an employment lawyer.
One of the other GTAA drivers told management that he had seen Mazanek steal gas using a jerry can “hundreds of times” — sometimes when he was with Mazanek, sometimes when he was on the same shift with the scooper truck, and sometimes when he came in early for his shift. However, he later testified that he didn’t remember seeing Mazanek take gas in 2017 and he couldn’t explain how he would cross paths with him before his shift. There were also other inconsistencies in his account.
The same driver said that he had seen Mazanek do private towing jobs with the BST truck and he also stole items from customers’ cars. However, Mazanek said that GTAA personnel would sometimes direct him to tow vehicles offsite, which was at their discretion.
Unreliable witness
Had BST investigated more thoroughly, it might have learned that its grounds for termination were questionable and the other driver wasn’t a reliable witness upon which to base its termination decision, says Flett.
“Where this particular [employer] fell short was in the credibility of the witnesses that were put forward, particularly the witness to the conduct, who was inconsistent. I think that proved to be highly problematic, as he was central for allegedly having observed the theft having taken place.”
BST investigated the use of the company gas card and determined that either Mazanek or another driver, or possibly both, had been stealing gas.
In early 2017, BST spoke to Mazanek about complaints from the GTAA that he was leaving the site frequently, which was contrary to instructions. Mazanek said that he left to get lunch each day, but BST told him he could not leave the site while on duty and should bring his lunch or buy it at a GTAA restaurant.
The GTAA was also unhappy with the amount of time the drivers were spending at its compound compared to patrolling around the GTAA site. The general manager reported that Mazanek said he didn’t want to do the roundabouts because they were boring, but Mazanek denied saying this.
On Oct. 15, 2017, BST dismissed Mazanek and another driver on the GTAA contract. The general manager told Mazanek about his dismissal over the telephone but didn’t say why because he didn’t want to start a “he said/she said” confrontation.
Mazanek filed a wrongful dismissal action and BST asserted that it had just cause — raising the issues of leaving the GTAA site contrary to instruction, failing to comply with orders to do roundabouts, private towing offsite without authorization, and stealing from vehicles, in addition to the theft of fuel allegation.
Clear policies needed
Flett notes that an important element of establishing just cause for dismissal is having clear policies that spell out what constitutes just cause, but BST didn’t show that it had any relevant employee policies relating to the reasons for termination or a written employment agreement.
“Maybe there were some [policies], but I’m going to assume that if there were relevant policies around conduct at the workplace covering use of the gas card and vehicles, a prudent employer would have that outlined in policies and procedures in the employee handbook,” says Flett.
The Ontario Superior Court of Justice found that while BST’s investigation determined that someone was likely stealing gas and it might have been Mazanek, that wasn’t enough to provide just cause for dismissal. The main source for the allegation was the driver who claimed to have witnessed it, but his evidence was inconsistent, said the court.
“Investigations don’t have to be large scale, but they need to be thorough and are strongly recommended when an employer is considering termination of employment for cause in the absence of very clear, unequivocal evidence — which was the situation here,” says Flett.
The court also found that BST didn’t give Mazanek any formal warnings about leaving the GTAA site, so it couldn’t use that as a reason for dismissal. The company also didn’t provide any evidence countering Mazanek’s claim that he had been directed by GTAA personnel to do offsite towing or supporting the unreliable driver’s claim that Mazanek had stolen items from vehicles.
Without proper investigation or warnings, none of these amounted to just cause, said the court.
Serious misconduct does not automatically provide just cause without an investigation, says another employment lawyer.
Based on Mazanek’s five-plus years of service, BST was ordered to pay him six months’ pay in lieu of notice less mitigation income, totalling nearly $20,000.
The case demonstrates the importance of having good policies in place and conducting a good investigation, which are essential to establish just cause, according to Flett.
“There was no written agreement and there were no employee policies,” he says. “Those would be something that a prudent employer is going to want to button down and have available for an investigation.” See Mazanek v. Bill & Son Towing, 2021 ONSC 4512.
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If you have any questions or inquiries regarding employer responsibilities, contact Zubas Flett Law at 416-593-5844 or questions@employment-lawyers.ca.