Progressive discipline is undoubtedly one of the best-known principles governing disciplinary action in employment law. It rests, in part, on the premise that employees should generally have an opportunity to recognize their misconduct and correct their behaviour before an employer resorts to the ultimate sanction of dismissal. The exception, of course, is serious misconduct that immediately destroys the trust necessary to maintain the employment relationship.
But can the nature of an employer’s operations affect the extent of progressive discipline required before an employee may be dismissed? This is one of the questions recently considered by the Administrative Labour Tribunal (the “Tribunal”). [1]
The facts
The complainant had worked for the employer since 2017. The employer operated gaming establishments featuring video lottery terminals and Kinzo gaming tables. At the time of her dismissal, she held the position of assistant manager and also worked some shifts as a bar attendant. The employer’s operations were subject to extensive regulation by Loto-Québec and involved handling substantial amounts of money.
Beginning in mid-August 2023, several incidents involving the complainant occurred. She “borrowed” $550 from the employer’s safe to cover a personal expense without obtaining authorization. She subsequently repaid the money. The employer’s representatives met with her and explained that her conduct was unacceptable, that no further incident would be tolerated and that any recurrence could result in dismissal. The Tribunal treated this intervention as the first step in the progressive discipline process.
In late August 2023, the complainant failed to intervene when a customer played two video lottery terminals simultaneously, contrary to one of the employer’s rules. The employer met with her again and issued a second verbal disciplinary warning. This was the second and final warning she received.
The employer also learned that the complainant had played Kinzo with a customer on at least two occasions, in breach of rules she knew applied.
A subsequent theft prompted the employer to review footage from the establishment’s surveillance cameras. [2] Among other things, the footage revealed that the complainant had developed a close relationship with a female customer and allowed her to enter and remain behind the bar while the cash drawer was open. From that location, the customer could also potentially access information on a monitor that was not available to customers.
Finally, the complainant breached another workplace policy by eating food brought in from outside with a customer in the public area of the establishment. This was, in fact, the only instance of misconduct she admitted at the hearing.
On September 18, 2023, the company’s president dismissed the complainant over the telephone. The reasons for her dismissal were not explained to her during the call. She filed a complaint alleging dismissal without good and sufficient cause that same day.
The decision
The Tribunal dismissed the complaint, finding that the complainant’s dismissal was supported by good and sufficient cause. In reaching this conclusion, it examined the various instances of misconduct alleged against her, focusing particularly on their cumulative effect in the specific context in which they occurred.
The Tribunal observed that, viewed in isolation, the individual instances of misconduct did not necessarily appear sufficient to justify dismissal. It nevertheless continued its analysis by considering the particular nature of the employer’s operations and the degree of trust they required of its employees.
The Tribunal placed particular emphasis on the fact that the employer operated in the gambling industry, a heavily regulated sector in which breaches of applicable rules can have significant consequences for an employer and may even jeopardize its right to operate.
Beyond their direct impact on the employer’s operations, such breaches can also undermine public and customer confidence, which is particularly important in this type of establishment. In this regard, the Tribunal noted that, in certain sectors where that confidence is more vulnerable, including financial institutions and the gambling industry, employees are held to a heightened standard of conduct. Employers are therefore entitled to require a high degree of honesty and integrity from their employees. The Tribunal found that the complainant had failed to meet these standards, particularly given her disregard for the applicable rules and her repeated misconduct over a short period.
The complainant’s managerial responsibilities were also an aggravating factor. As assistant manager, she was expected both to comply with the employer’s rules and to set an example for the other employees required to follow them.
The Tribunal further noted that the employer should preferably have given the complainant an opportunity to provide her account of events before dismissing her. This shortcoming did not, however, alter its conclusion that the misconduct had occurred and warranted dismissal.
With respect to progressive discipline, the Tribunal found that the employer’s disciplinary follow-up had been inadequate and incomplete. Nevertheless, it concluded that the complainant was fully aware of the rules she was required to follow and was regularly reminded of them. Despite receiving two verbal warnings, her conduct showed that she did not take those rules sufficiently seriously. The Tribunal therefore concluded that, despite the shortcomings in its disciplinary follow-up, the employer had met its obligations regarding progressive discipline.
The employer was accordingly justified in dismissing the complainant.
