In British Columbia, a CFO racked up over $14,000 in personal charges on his company credit card.
The employee was asked several times for repayment but delayed paying back the charges. The employee eventually provided a cheque for the outstanding amounts but it bounced when the employer tried to cash it.
The employer and employee then agreed that $500 would be deducted from each of the employee’s pay cheques to go towards his unpaid balance. Despite the payroll deductions, the employee continued to accrue personal charges on the company credit card and the unpaid balance continued to grow. At one point the employee’s use of the company credit card was so significant that the card was declined for exceeding the monthly credit limit.
Ultimately, the employee’s habit of using the company credit as an interest-free personal line of credit warranted an investigation. The investigation produced a misconduct report that was used for justifying the termination of the employee’s employment.
The decision
The employee commenced a human rights complaint against the employer alleging discrimination of a protected characteristic (i.e. ancestry, place of origin, race or colour). The employee alleged that racial stereotypes resulted in the employer terminating his employment.
While there was no direct evidence that the stereotype actually informed the misconduct report, the Tribunal found that the employer had acted discriminatorily.
The Tribunal held that even a subconscious presence of a racial stereotype in an investigation and/or termination is sufficient to amount to discrimination. In this case, it was determined that the stereotypes motivated the misconduct report. The employer’s reliance on that report to justify the termination of the employee’s employment meant that the termination was discriminatory.
Implications for employers
This case demonstrates that employers must be cognizant of unconscious biases when investigating employee misconduct and terminating employment. To avoid allegations of discrimination, it may be prudent for employers to ensure consistency in their practices concerning employee misconduct.
The MLT Aikins Labour & Employment team has extensive experience advising on misappropriation of funds and other claims against former employees. To learn more about how employee misconduct matters can impact your organization, contact a member of our team today.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should not be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.