It has been said that no good deed goes unpunished. That saying was apparently proven this week when an Ottawa-area woman was allegedly fired for confronting a customer about leaving a dog in his car while he shopped.
The story has received much media attention. On Thursday, a story appeared in the Ottawa Citizen in which former Wal-Mart employee Carla Cheney alleged that she was fired for confronting a customer after witnessing him lock his Newfoundlander in his car. (Story here: Wal-Mart worker says she was fired for confronting customer over dog locked in car.) According to Environment Canada, temperatures measured at the Ottawa airport for the day on which she confronted the customer ranged from a low of 16.2 degrees at 11:00 PM to a high of 23.4 at 2:00 PM.
In a follow-up story in the same paper, Wal-Mart says employee wasn't fired for trying to help dog, it was reported that Wal-Mart denied, via a Facebook post, that Cheney was fired for trying to help the dog. Wal-Mart declined to say why she was fired, however, citing respect for Cheney and privacy concerns.
The questions some have asked are: "Is this legal?" "Is this allowed?" "Is this just cause?" and "Is this right?" Allow me to muse.
Allow me to start by saying that I have a soft spot for dogs. Indeed, their is a dog calendar on my desk. And, sometimes given what I do, I cannot help but find myself agreeing with Mark Twain, who has been quoted as saying, "the more I know about people, the better I like my dogs."
Surprising to some, the general answer to the question can you be fired for a good deed, is yes. In fact, at Ontario law, an employer does not require a reason to fire an employee at all. Provided only that the employer does not fire the employee for a prohibited reason (a little more on that, below), the only requirement that an employer must observe when terminating an employee's employment is the obligation to provide notice. For a discussion of what reasonable notice is, have a look at our "What is Wrongful Dismissal?" page.
There are very few prohibited reasons for firing an employee. Those reasons include firing an employee for a reason that is discriminatory under the Ontario Human Rights Code, firing someone for attempting to organize a labour union, and firing someone as a reprisal for raising a health and safety concern.
On Twitter I asked Professor David Doorey of York University's Osgoode Hall Law School whether he thought one could fit the concern about the dog into the reprisal provisions of the Ontario Occupational Health and Safety Act. He is yet to comment, other than to ask "the dog's health and safety?" to which I replied "Indeed."
The reason I mused about the Occupational Health and Safety Act, is that section 50 of the same provides that it is 'illegal' to dismiss or threaten to dismiss a worker because "the worker has acted in compliance with [the] Act or the regulations or an order made thereunder, has sought the enforcement of [the] Act or the regulations or has given evidence in a proceeding in respect of the enforcement of [the] Act or the regulations or in an inquest under the Coroners Act."
Unfortunately, I doubt the customer's dog would be protected by the provisions of the OSHA, and as such I am not entirely sure that it would apply to the situation.
As there was no suggestion of Wal-Mart engaging in any legally prohibited activity, I am left with the conclusion, based on the facts that have been reported, that Wal-Mart's decision to terminate Cheney's employment was, technically, legal. Whether she received sufficient notice of dismissal, or pay in lieu, is not something I am prepared to publicly comment upon, but if Ms. Cheney finds herself reading this, I would be happy to be of service to her.
Employees guilty of "just cause" are generally not entitled to notice, severance, or pay in lieu. Employees "guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer" are enumerated as being illegible to receive even the minimum amount of notice prescribed by the Ontario Employment Standards Act, 2000. (See paragraph 3 of section 2(1) of O. Reg 288/01.)
Clearly I do not have all the facts. As mentioned, I know nothing more than what has been reported, and I have not had the chance to review Wal-Mart's code of conduct as it may have applied to Ms. Cheney's particular situation.
Determining whether an employer has "just cause" or whether an employee has been guilty of "wilful misconduct" is difficult. However, somehow I find it difficult to conclude that Ms. Cheney's actions in this case would rise to the level necessary to sever the bond of trust between employee and employer. Ms. Cheney's actions may have been contrary to Wal-Mart's 'always be nice to the customer' policy (I am sure they have something similar,) but there must be occasions where the associate cannot be 'nice,' such as where the health or safety of a customer is in jeopardy. Taken in context, if one were to ask me whether the facts as presented gave Wal-Mart just cause for dismissal, I'd be inclined to say no.
Is it right to fire someone for committing a good deed? Personally, I can't think so. The negative publicity that this case has garnered cannot be good, at least in the short run, for this particular location.
However, as the analysis above demonstrates, there is a difference between what is right and what is allowed. Wal-Mart, as the employer, was allowed to fire her. Whether it was right to do so is really a question that can only be decided by the court of public opinion.
Some have mused that by firing Cheney, Wal-Mart's actions have put a chilling effect on other workers, who may now be scared to say anything about dogs - or even children - left in hot cars lest they lose their job. I am somewhat concerned that my musings above may add to this trepidation.
Allow me to say this, the US Department of Homeland Security has long had a saying, "If you see something, say something." While I have some concerns about the implications of that policy, and its xenophobic undertones, the actual saying is a good one. If you're an employee and you see a dog, baby, elderly person, or any other living entity being left in a hot car, at your place of work, say something. Be polite. Be civil. Report the problem up the chain as necessary, but please say something.
If you do get fired for saying something, allegedly for violating the 'the customer is always right policy,' know this: you are almost certainly going to be entitled to reasonable notice, you are almost certainly going to find new employment, and that new employment is almost certainly going to be for a more compassionate employer.
If you have been terminated for speaking up at work, the employment lawyers at Ottawa's Kelly Santini LLP would be happy to be of service to you.
While, yes, you can typically legally fire someone for being confrontational to one of your customers. And while, yes, sometimes an employee's actions will actually give you just cause for dismissal, just be mindful of the optics of the situation. There are always two ways to handle a situation, and a quiet, discrete, and respectful dismissal will typically garner no media attention.
If you are an Ontario employer and you are thinking about firing an employee because of something they have done, it may be appropriate to seek legal advice before doing so. The experienced employment lawyers at Ottawa's Kelly Santini LLP would be happy to be of service to your business.
--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.
Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.
The story has received much media attention. On Thursday, a story appeared in the Ottawa Citizen in which former Wal-Mart employee Carla Cheney alleged that she was fired for confronting a customer after witnessing him lock his Newfoundlander in his car. (Story here: Wal-Mart worker says she was fired for confronting customer over dog locked in car.) According to Environment Canada, temperatures measured at the Ottawa airport for the day on which she confronted the customer ranged from a low of 16.2 degrees at 11:00 PM to a high of 23.4 at 2:00 PM.
In a follow-up story in the same paper, Wal-Mart says employee wasn't fired for trying to help dog, it was reported that Wal-Mart denied, via a Facebook post, that Cheney was fired for trying to help the dog. Wal-Mart declined to say why she was fired, however, citing respect for Cheney and privacy concerns.
The questions some have asked are: "Is this legal?" "Is this allowed?" "Is this just cause?" and "Is this right?" Allow me to muse.
Is it legal to fire an employee for a good deed?
Allow me to start by saying that I have a soft spot for dogs. Indeed, their is a dog calendar on my desk. And, sometimes given what I do, I cannot help but find myself agreeing with Mark Twain, who has been quoted as saying, "the more I know about people, the better I like my dogs."
Surprising to some, the general answer to the question can you be fired for a good deed, is yes. In fact, at Ontario law, an employer does not require a reason to fire an employee at all. Provided only that the employer does not fire the employee for a prohibited reason (a little more on that, below), the only requirement that an employer must observe when terminating an employee's employment is the obligation to provide notice. For a discussion of what reasonable notice is, have a look at our "What is Wrongful Dismissal?" page.
There are very few prohibited reasons for firing an employee. Those reasons include firing an employee for a reason that is discriminatory under the Ontario Human Rights Code, firing someone for attempting to organize a labour union, and firing someone as a reprisal for raising a health and safety concern.
On Twitter I asked Professor David Doorey of York University's Osgoode Hall Law School whether he thought one could fit the concern about the dog into the reprisal provisions of the Ontario Occupational Health and Safety Act. He is yet to comment, other than to ask "the dog's health and safety?" to which I replied "Indeed."
The reason I mused about the Occupational Health and Safety Act, is that section 50 of the same provides that it is 'illegal' to dismiss or threaten to dismiss a worker because "the worker has acted in compliance with [the] Act or the regulations or an order made thereunder, has sought the enforcement of [the] Act or the regulations or has given evidence in a proceeding in respect of the enforcement of [the] Act or the regulations or in an inquest under the Coroners Act."
Unfortunately, I doubt the customer's dog would be protected by the provisions of the OSHA, and as such I am not entirely sure that it would apply to the situation.
As there was no suggestion of Wal-Mart engaging in any legally prohibited activity, I am left with the conclusion, based on the facts that have been reported, that Wal-Mart's decision to terminate Cheney's employment was, technically, legal. Whether she received sufficient notice of dismissal, or pay in lieu, is not something I am prepared to publicly comment upon, but if Ms. Cheney finds herself reading this, I would be happy to be of service to her.
Did Confronting the Customer Give Wal-Mart Just Cause to Fire Her?
Employees guilty of "just cause" are generally not entitled to notice, severance, or pay in lieu. Employees "guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer" are enumerated as being illegible to receive even the minimum amount of notice prescribed by the Ontario Employment Standards Act, 2000. (See paragraph 3 of section 2(1) of O. Reg 288/01.)
Clearly I do not have all the facts. As mentioned, I know nothing more than what has been reported, and I have not had the chance to review Wal-Mart's code of conduct as it may have applied to Ms. Cheney's particular situation.
Determining whether an employer has "just cause" or whether an employee has been guilty of "wilful misconduct" is difficult. However, somehow I find it difficult to conclude that Ms. Cheney's actions in this case would rise to the level necessary to sever the bond of trust between employee and employer. Ms. Cheney's actions may have been contrary to Wal-Mart's 'always be nice to the customer' policy (I am sure they have something similar,) but there must be occasions where the associate cannot be 'nice,' such as where the health or safety of a customer is in jeopardy. Taken in context, if one were to ask me whether the facts as presented gave Wal-Mart just cause for dismissal, I'd be inclined to say no.
Is this Right?
Is it right to fire someone for committing a good deed? Personally, I can't think so. The negative publicity that this case has garnered cannot be good, at least in the short run, for this particular location.
However, as the analysis above demonstrates, there is a difference between what is right and what is allowed. Wal-Mart, as the employer, was allowed to fire her. Whether it was right to do so is really a question that can only be decided by the court of public opinion.
Lesson for Employees
Some have mused that by firing Cheney, Wal-Mart's actions have put a chilling effect on other workers, who may now be scared to say anything about dogs - or even children - left in hot cars lest they lose their job. I am somewhat concerned that my musings above may add to this trepidation.
Allow me to say this, the US Department of Homeland Security has long had a saying, "If you see something, say something." While I have some concerns about the implications of that policy, and its xenophobic undertones, the actual saying is a good one. If you're an employee and you see a dog, baby, elderly person, or any other living entity being left in a hot car, at your place of work, say something. Be polite. Be civil. Report the problem up the chain as necessary, but please say something.
If you do get fired for saying something, allegedly for violating the 'the customer is always right policy,' know this: you are almost certainly going to be entitled to reasonable notice, you are almost certainly going to find new employment, and that new employment is almost certainly going to be for a more compassionate employer.
If you have been terminated for speaking up at work, the employment lawyers at Ottawa's Kelly Santini LLP would be happy to be of service to you.
Lesson for Employers
While, yes, you can typically legally fire someone for being confrontational to one of your customers. And while, yes, sometimes an employee's actions will actually give you just cause for dismissal, just be mindful of the optics of the situation. There are always two ways to handle a situation, and a quiet, discrete, and respectful dismissal will typically garner no media attention.
If you are an Ontario employer and you are thinking about firing an employee because of something they have done, it may be appropriate to seek legal advice before doing so. The experienced employment lawyers at Ottawa's Kelly Santini LLP would be happy to be of service to your business.
--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.
Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.
"Lessons for employees" are appreciated. Joy
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