Breach of trust by one of your employees following an investigation: employers, speed is of the essence
In Quebec, theft or fraud committed by an employee during his or her employment can generally constitute serious grounds for dismissal. This may include theft of equipment, unlawful appropriation of money in the context of expense reimbursement or simply theft of "time." These situations normally start with simple doubts, assumptions or presumptions on the part of the employer. In this context, an investigation is necessary. Even if the allegations turn out to be well founded, in order for the results of the investigation to be accepted and upheld by the courts, certain rules must be followed. Otherwise, employers may be in for a nasty surprise.
Turgeon v. Construction Raytech (2014) inc.: a counter-example of an investigation
In the recent decision Turgeon v. Construction Raytech (2014) inc., 2021 QCTAT 6069, a company's estimating manager was dismissed for demanding payment for unauthorized overtime and for failing to pay for a personal purchase of equipment. According to the employer, the employee's actions were serious and resulted in a breach of trust. The evidence indicated that the complainant did not conceal his actions. A significant amount of overtime was claimed by the employee without it being authorized.
However, the employer waited for approximately three months before acting. During this period, the employer claims that it was conducting an investigation. However, during this investigation, the manager was not met to obtain his version of the facts. Moreover, during the investigation, the manager was kept on duty by the employer. Following its analysis, the Administrative Labour Tribunal concludes that the investigation was botched. It was considered impossible for the employer to claim a breach of trust regarding its employee while keeping him in his position. In other words, the employer's actions were incompatible with its claims and the dismissal imposed on the basis of a breach of trust is cancelled by the tribunal.
Any employer who suspects that an employee has committed serious misconduct in performing his or her duties must take the necessary steps in a prompt and serious manner to shed light on such suspicions. In such situations, the employer should, subject to special circumstances and any applicable collective agreement:
- Announce to the employee as soon as possible that he or she is under investigation. Proceed at that time with an administrative suspension with pay for the duration of the investigation, or, if the context justifies it, without pay on an exceptional basis;
- Then, as part of your investigation, meet with the employee to obtain his or her version of the facts. This meeting should be conducted, if possible, in the presence of a witness and, if required, the employee’s union representative if covered by a union certification. If you are not accompanied, it is essential that you take notes at the time of the meeting;
- Quickly complete the investigation by documenting all the evidence obtained;
- Finally, in light of the information gathered, meet again with the employee to communicate the results of the investigation carried out and any measures applicable to the employee; and
- For unionized companies, ensure the time limits of the collective agreement for imposing a disciplinary measure, if any, are complied with.
The author wishes to thank Étienne Tanguay, student at law, for his assistance in preparing this piece.
Xavier Hamel, Senior Associate, Norton Rose Fulbright
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