Image taken from: http://www.citytv.com

By now, Torontonians and many Canadians outside the GTA are familiar with George Robitaille, otherwise known as “the snoozing TTC collector” or something along those lines.  The incident, in which a transit rider observed a collector fast asleep in his booth for several minutes and ultimately took pictures of him, leaning back in his chair, comfortably asleep, made headlines and angered many TTC riders and other members of the public.  Subsequently, other photos surfaced, showing other TTC employees caught sleeping on the job.

The public condemnation was swift and unequivocal. There was no shortage of calls for Mr. Robitaille to be fired, along with calls for a complete revamping of the TTC, particularly in light of the fact that the head of the TTC had very recently acknowledged deficiencies in customer service. In an apparent attempt to divert attention and/or blame, the Union representing TTC employees like Mr. Robitaille questioned the motives of the picture taker, suggesting that the failure to knock on the booth or otherwise attempt to ensure that the sleeping collector was, in fact, alright, was the truly shocking and offensive aspect of the story. Since then, Mr. Robitaille has publicly apologized, and has also gone on radio in which he defended his actions (or inaction) in a somewhat less apologetic manner.

As the dust settles on this matter, it is a prime opportunity to consider the incident in the context of Canadian employment laws.  It is apparent that Mr. Robitaille remains an employee of the TTC. Whether or not he was disciplined, and to what extent, is not publicly known. However, many commentators have started to ask what someone has to do in order to get fired in Canada, or have used the incident to support criticism that workers, particularly those that are protected by a union, cannot be fired no matter what they do.

The reality, as I have spoken and written about repeatedly, is that employees can be dismissed for cause, and therefore without notice or severance, when their misconduct or performance is so egregious that the employment relationship has been irreparably harmed. In such circumstances, our courts and arbitrators will find that just cause for dismissal existed and uphold a termination on that basis.

In Mr. Robitaille’s comments during a radio interview on January 25^th, he offered many explanations or excuses for his sleeping on the job. Among other things, he mentioned his lengthy career with the TTC, an apparent multitude of illnesses including the possibility of sleep apnea (for which he is apparently now being tested), a lengthy list of medications that he is currently taking, and the fact that, leading up to the incident, he had worked for 30 consecutive days. One can only wonder how a unionized employee in Canada could be forced to work 30 days in a row. The only other explanation would be that he volunteered to do so, which would seem particularly ill-advised if he in fact suffers from a multitude of illnesses, is taking seven or eight different forms of medication, and suspects that he may suffer from sleep apnea.

During and after the radio interview, I heard many people snickering about Mr. Robitaille’s explanations and, essentially, suggesting that they were irrelevant and that he should be fired as a result of his behaviour.

Although many may be skeptical of the explanations offered by Mr. Robitaille, this situation is a good reminder of the fact that in any situation where an employee engages in misconduct, such as sleeping on the job, the employer must take a contextual approach in assessing whether just cause for dismissal exists. The contextual approach involves considering not only the misconduct in question, but the entirety of the employment relationship. This would include the length of the employment relationship, the nature of the employee’s position and duties, any prior discipline, and any other contextual factors relating either to the relationship or the misconduct in question. The misconduct cannot be considered in isolation. It is only once all of the relevant factors have been considered that an employer, or a court, can determine whether the relationship has been irreparably harmed by the misconduct.

When faced with apparent misconduct on the part of an employee, it is incumbent upon an employer to conduct an appropriate investigation. In assessing whether the employment relationship has been irreparably harmed, courts and arbitrators will often consider the employee’s behaviour during the course of the investigation. In many cases, this can be the difference between a finding of just cause and a finding that dismissal without notice was excessive. An apologetic, dishonest employee is less likely to be given a second chance than those who admit to their wrongdoing and offer suitable apologies and assurances that it will not happen again.

The contextual approach is designed to allow for discretion and avoid hard and fast rules when the potential outcome is summary dismissal, which is dismissal without notice, pay in lieu or severance. Summary dismissal has been referred to by some judges as “the capital punishment of employment law”, so it is not surprising that courts may be reluctant to approve it in ambiguous circumstances.

Because a contextual approach is required, the misconduct in question will not be the only factor in determining whether summary dismissal is appropriate. For that reason, it is entirely possible that two employees will be guilty of the exact same misconduct, but the penalties will differ in each case. For example, a long-term employee with a clean disciplinary record will typically be given more leeway than a recent hire that has already been in trouble repeatedly.

Regardless of what ultimately happens to Mr. Robitaille, or how the public feels about this incident, it is a useful reminder of the fact that employers should not leap to judgment upon learning of misconduct on the part of an employee. No matter how egregious the conduct appears to be, it is crucial that employers engage in an appropriate investigation, consider all of the contextual factors, and then decide whether summary dismissal is warranted. I regularly monitor just cause cases throughout the country and can comfortably say that courts and arbitrators will uphold summary dismissal in appropriate circumstances.  However, the onus will be on the employer to justify the decision.

I would welcome any comments on the law of summary dismissal in Canada.

Stuart Rudner, Miller Thomson LLP