- No Just Cause for Termination: Problems with Clarity, Training, Consistency and Investigation
- March 14, 2014 | Author: Ryley Mennie
- Law Firm: McCarthy Tétrault LLP - Vancouver Office
A recent decision of the BC Supreme Court went in favour of an employee who was terminated by her employer for alleged conflict of interest and breaches of policy. The court determined that there was a lack of clarity, training and consistency in its policies and procedures, and a flawed investigation: Ogden v. CIBC.
Ms. Ogden immigrated to Canada in 2000. She learned English and earned a business degree from Royal Roads University. She went to work with CIBC and built up a portfolio of $233 million working with Chinese clients. She was consistently a top performer.
In the middle of one night in 2010, in an urgent situation, she accepted a wire transfer of funds from China to her personal account and then completed the transfer to the client’s account the next day. There was nothing hidden, no personal benefit to Ms. Ogden, and it was done as the only way to get the funds necessary to avoid the collapse of a house purchase by the client . Apart from the funds being routed through Ms. Ogden’s personal account, the process of getting money from China was consistent with bank practice.
The wire transfer incident came to light some six months later. Ms. Ogden was forthcoming about what she had done. The court found that Ms. Ogden had simply made an error in judgment and that the employer did not give her a full opportunity to explain.
Ms. Ogden was terminated for just cause. The employer relied on a few previous incidents for which it had given a final warning after the wire transfer incident. The court concluded the wire transfer incident could not establish a final incident for cumulative cause, as it preceded the final warning Ms. Ogden had received.
The employer also relied on its conflict of interest policy with respect to the wire transfer. The court decided that there was no breach of the conflict of interest policy and stated:
Where the employee’s conduct is the result of an honest mistake, an error in judgment, or the result of a lack of training, the courts have stopped short again and again from finding that cause - in such circumstances - is warranted.
Intention here is key. Knowing that the transaction was wrong is what connects the conduct to a trust issue. Absent intention, the result is someone who exercised her judgment and made the wrong call.
The court found that Ms. Ogden’s career in financial services was ruined and that she suffered emotional harm. It cited “cavalier, insensitive and reckless” conduct by the employer in its investigation and resulting termination of Ms. Ogden and ordered damages for breach of contract and aggravated damages to be assessed in another trial.