Be careful with employer’s confidential info
Sheila had worked for a major bank as an investment adviser for almost 24 years. In the year before her termination, her father and father-in-law died and she learned her husband had cancer. Things were tough at work and she was having problems keeping up but was doing her best. She was being criticized for her communication style in emails, not keeping up with tasks and losing some accounts.
She was also being criticized for yelling and swearing in the branch and using a rude tone to speak to her support staff. She received a disciplinary letter and wrote a full explanation in defence, but three months later she was terminated for “restructuring.”
The employer made a severance offer, but Sheila rejected it and brought a claim for wrongful dismissal.
A claim for wrongful dismissal is really just a claim saying that based on Sheila’s age, seniority and level of responsibility, the employer should have given her more advanced notice of the termination or pay in lieu of that notice. Since Sheila was making about $250,000 a year in commissions, the stakes were high.
The employer filed a defence stating that Sheila’s claims for notice were exaggerated and it had offered enough.
After the pleadings are completed in litigation, both sides produce all their documents that are relevant to the issues and then there is a discovery. At her discovery there was no judge in the room, only a court reporter, the lawyers, Sheila and a representative of the bank. It came out when Sheila was being questioned by the bank’s lawyer that before her termination she had copied about 4,000 work emails onto a USB drive and kept it in her home office. This happened about four months before Sheila’s termination. The bank amended its statement of defence and claimed that it had “after acquired cause” and did not owe Sheila anything.
The bank’s position was Sheila had seriously violated extensive rules and policies with respect to client confidentiality. Even though the bank didn’t know about Sheila’s malfeasance at the time of termination, it still happened and Sheila had no entitlement to pay in lieu of notice.
“After acquired cause” has long been recognized as a valid defence. If I terminate you from my store as a cashier as a result of a shortage of work I would not take the position there was just cause. I would know I owed you pay in lieu of notice. But, if I later found out, before any final paperwork was signed, that you had been stealing from me, I can claim after acquired cause. I can refuse to give you severance even though I knew nothing of your theft at the time of termination.
The 4,000 emails Sheila saved to her USB related to tasks assigned to her by two of her bosses and communications with her support staff that had been alleged to be inappropriate. By the time she did this Sheila had already been receiving criticisms and wanted to have access to documents to protect herself if anything happened. The problem is that many of the emails included extensive confidential client information such as social insurance numbers and assets.
Sheila never shared these documents with anyone, exploited them or communicated them in any way. She only had them in her possession to protect herself. She saved them at home because she thought she was not being treated fairly. The judge found this was a lapse in judgment but not just cause, even if the employer had known about it before the termination.
Sheila was awarded 24 months’ pay in lieu of notice as well as the costs involved in bringing the claim.
I have repeatedly seen major banks terminate employees, claiming just cause, for violations of privacy codes by employees that were not nearly as significant as Sheila’s code violations. This is only one decision from one judge, but it may start to change the balance in those kinds of cases.
Finally, I do not recommend, despite the fact that Sheila got away with it, copying or retaining confidential information belonging to your employer. It is going to create trouble and a different judge might have a different opinion about whether or not you are entitled to severance if it is discovered.
This article was originally published by The Hamilton Spectator.
