In a recent Alberta court decision, the court ruled that the employer was not justified in firing an employee after she committed a one-time clerical error.

Employee Misses Work Due to Illness

The employee began working for the employer, a union, in 2014. Her primary roles were as an office manager and bookkeeper, with no supervisory or managerial functions.

The employee took several unpaid sick days off from work due to illness in February 2018. During much of this period, the employer manually recorded her hours of work to ensure that she was not paid for the days she was absent from work due to her illness.

However, upon her return to work, it was up to the employee to manually record her last day of absence in the payroll system so she would not be paid for it. The employee failed to do so. As a result, she was paid for the last day of her absence in the following pay period.

Employee Terminated Following Discovery of Payroll Issue

The employer subsequently discovered that the employee had been paid for the one day of work she had missed due to illness. She was terminated soon after.

The employee commenced a court action against the employer seeking damages of $50,000, representing  $45,000 in general damages for wrongful dismissal, $3,000 in aggravated damages and $1,500 for damages arising from an allegation of negligent misrepresentation.

The employer submitted that the employee was terminated for just cause. In the alternative, if it was determined that she was terminated without just cause, the employer argued that the period of reasonable notice should not exceed five weeks.

Parties Disagree on Characterization of Employee’s Conduct

The employer claimed that the employee had “wrongfully claimed for pay and was paid for … a date that she was actually off work and not entitled to pay”. The employer further claimed the her conduct had been intentional and categorized her action as “time theft”.

In response, the employee claimed that the overpayment of salary had been a “clerical error” and was not sufficient to damage the trust in the employment relationship. The employee acknowledged that she received payment of wages for her missed day of work, but claimed she had made a mistake.

Court Sets out Relevant Legal Principles 

After reviewing the relevant legal principles, the court explained that its role was to “assess the facts and circumstances of both parties employing a contextual approach and consider the surrounding circumstances of the alleged misconduct and the nature and extent of the employee’s conduct.”  Additionally, the court noted that the employer bore the burden of proving just cause. Finally, it noted that the termination of employment is an extreme measure, only to be used for “serious misconduct of a fundamental nature”.

Court Rules That Employee’s Action Was a Clerical Error

The court then considered both parties’ testimony and evidence. Overall, it found that the employee’s action had been “inadvertent, unintentional and a mistake”. Ruling that the employer had not met its burden of proof for just cause of the employee’s employment, the court stated:

“On an overall basis, employing a contextual approach and in the context of existing circumstances and conditions, I found [the employee] to be a credible and honest witness and her explanation of her actions, probable and likely in relation to the surrounding circumstances and conditions. I do not find her actions dishonest or fraudulent or that she was intending to take advantage of her employer and commit “time theft”.”

Additionally, the court noted that the employer had failed to speak to the employee about the issue prior to advising her that her employment was being terminated. As such, she was not given the opportunity to explain her actions, prior to being advised she was being fired.

In the result, the court held that the employer had failed to prove just cause or that the employee’s actions were intentional, dishonest, fraudulent or deceitful, instead finding that the employee had committed a clerical error. The court therefore ruled that the employee was wrongfully terminated and was entitled to damages representing a reasonable notice period of five months. However, it refused to award any further damages as requested by the employee.

Get Advice

Being fired from your job can be one of the most devastating incidents that can occur. If you have been terminated, it is critical to consult with an experienced and knowledgeable employment lawyer as soon as possible to obtain timely legal advice. An employment lawyer can help you understand your options, will provide necessary guidance through an often confusing and stressful process, and will ensure that you receive the highest level of compensation possible.

For more than 25 years, the employment lawyers at DBH Law have represented employees and employers in wrongful dismissal actions. We take pride in building personal relationships with each of our clients and advising them through every step of the litigation process. Our clients have the peace of mind of knowing that their lawyer will work to obtain the best result possible so that the client can focus on moving forward.

The lawyers and staff at DBH Law rely on our quarter-century of litigation and advocacy experience to provide our clients with pragmatic, strategic, and responsive legal guidance. We believe in relationship-building, and provide tailored, trusted, client-focused advice. Contact us online or by phone at 403-252-9937 to discover how we can help you today.