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Rude Texts Used to Find After-Acquired Just Cause
Golob v Fort St. John (City), 2021 BCSC 2192 (Tammen, J), is a new BC Superior Court decision where a Deputy Fire Chief sued for wrongful dismissal of employment, but the court found just cause for termination in part due to rude and inapropriate texts the employee sent from his work cell phone which were discovered after his termination of employment.
This case is interesting because it deals with the challenging intersection of off-duty conduct and after-acquired just cause.
The key facts in this case are as follows:
- The plaintiff employee had worked for the defendant employer (City of Fort St. John) for 12 years
- The employee had a clean disciplinary record
- The employee worked in the position of Deputy Fire Chief, a non-union (management exempt) position
- There were specific terms in the employment contract of the employee that he was not to promote disharmony within the fire department
- At one point, another employee overheard the plaintiff make comments about the Fire Chief, and reported it to the Fire Chief
- After that, there was an investigation into what the plaintiff employee had been saying to others. During the investigation, many other employees had been interviewed, but the plaintiff employee was not interviewed or even made aware there was an investigation
- Many of the employees interviewed in the investigation described the plaintiff employee as loud, brusque, profane and generally unpleasant to deal with
- After the investigation, the City terminated the employee’s employment, purportedly for just cause
- The termination letter referred to breaches of the Code of Conduct and Discrimination and Harassment Policy, but provided no specifics
- After termination of employment, the employer downloaded texts and emails from the employee’s work cellphone. The employer found on that cellphone text messages and email from the employee to various other employees that were personally negative about the Fire Chief. A few were to someone competing for a job, where the plaintiff was part of the hiring committee, and had suggested the Fire Chief was unfairly favoring the other applicant and that the person he was texting should use his seniority to block further competing candidates
- In the court’s analysis of the facts, the court found that, while employed:
- the plaintiff had once referred to the firefighters as “idiots” to another member of management in the office, and had been overheard by a firefighter. The employee had been required to apologize for that, and he did
- at dinner with some colleagues during a convention, the plaintiff described another Deputy Chief to a colleague as a “fucking idiot”
- at a fire scene, the plaintiff had openly questioned the command decisions of the Fire Chief and insinuated that he was incompetent
- the plaintiff had once been seen rolling his eyes when the Fire Chief was giving a speech
Analysis / Conclusion
The court first concluded that the employer had breached its duty of procedural fairness to the employee, and that the employer did not have just cause on the grounds it relied on at the time of termination, even despite that the employee had shown a pattern of disrespect towards the Fire Chief during his employment. This result is not surprising, given that the employer did not even interview the employee prior to purporting to terminate his employment for just cause.
However, the court went on to find, on the basis of the text messages and emails the employer later discovered on the plaintiff’s work phone, that the employer did in fact have just cause to terminate the employment of the employee for breach of the terms of his employment contract to not “promote disharmony” at the fire station. The employee’s conduct was insolent and intentionally undermined the leadership of the fire station. The trust was broken.
This was not a particularly sympathetic plaintiff. He was nasty to several people, and was not well-liked at the fire station. If the employer had done a proper investigation, including of course interviewing the plaintiff, it likely would have had a much stronger position, and I doubt this would have gone to trial. This would have likely settled due to the risks involved to the plaintiff to proceeding, or at least been much less of a risk to the defendant employer in the trial. As it was, the defendant employer had to expend resources to get to and through trial, and to take substantial risk in doing so.
This case should serve as a lesson for employees and employers. For employees, the lesson is that you should be careful about what you text and email to co-workers, especially from a work phone. The employer may not notice the paper trail while you are employed, but if you later sue them and they need to build a just cause case, they will probably find it and will definitely use it. In this case, without the evidence from the cellphone, the employer would likely have lost. For employers, the lesson is that if you wish to have the option of asserting just cause for termination, you should do a thorough and procedurally fair investigation before you terminate.
A published copy of Golob v Fort St. John (City), 2021 BCSC 2192 can be found at the following link : https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc2192/2021bcsc2192.html?searchUrlHash=AAAAAQAOMjAyMSBCQ1NDIDIxOTIAAAAAAQ&resultIndex=5
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