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Ethics manager terminated for breach of trust

Jurisdiction: - British Columbia

In 2015, the BC Court of Appeal issued the decision Roe v. British Columbia Ferry Services Ltd., 2015 BCCA 1, in which it overturned a trial judgment which had found there was no just cause for the termination of a high level manager for handing out food vouchers to his daughter's volleyball team. The court emphasized the responsibilities and trust attached to the plaintiff's senior management position. Shortly thereafter, it issued a split judgement in Steel v. Coast Capital Savings Credit Union2015 BCCA 127, upholding the termination of a long-service employee with an unblemished record on the basis of a single incident of breach of trust. The decision rested mainly on the nature of the employee's position, which involved overseeing confidential materials. The recent trial judgment in Manak v. Workers’ Compensation Board of British Columbia, 2018 BCSC 182 demonstrates that the principles expressed by the Court of Appeal continue to be applied seriously by the courts.

In Manak, the plaintiff held a managerial role and was considered an “ethics manager” for staff. The defendant dismissed her after learning she disclosed confidential staffing matters to employees, including discussing injury claims related to staff. At the termination meeting the defendant offered the plaintiff the chance to retire with payment of a retiring allowance equivalent to four months' salary, and gave her 24 hours to sign a release. The plaintiff signed the release and accepted the benefits of the deal. 

In order to circumvent the release, the plaintiff attempted to rely on the usual line of cases addressing unconscionability. Though the 24 hour turnaround would normally provide a good fact pattern for this argument, the plaintiff was done in by her receipt of more than trifling severance payments in the face of what was admitted misconduct on her part, as well as her representations to the defendant she had actually received legal advice and understood her rights. 

As it concerned whether the misconduct constituted just cause, the judge found Steel the most informative precedent given the nature of the plaintiff’s position, and determined there was just cause for dismissal. 

Although Roe and Steel arguably didn't change the test for assessing cause (something supported by the SCCs denial of the application for leave to appeal in Steel), they do appear to have become a useful tool for defendants dealing with employees holding special positions of trust who engage in misconduct.