In the case of Bhasin v. Best Buy the Plaintiff was terminated for cause
because he sold unactivated cell phones to more than one person. The
policy is that Best Buy stores limit the number of unactivated cell
phones sales to one phone per customer. This is because Telus, Bell,
Rogers and Fido provide the cell phones to the store at reduced cost
with the understanding that the phones will not be sold unactivated so
that the carriers reap the income from the monthly phone service
changes upon sale. Best Buy did store audits and found that Store No.
605 was breaching the policy and dispatched a workplace investigator.
It is important to note that the Plaintiff
was
a computer manager and was not employed in the cell phone department.
Bhasin was simply filling in for the cell phone manager that was on
vacation for two weeks. The investigator interviewed the store manager
who ultimately quit. The Judge drew an inference that the store
manager knew about and condoned the breaches of the cell phone policy
in the store. The cell phone sales manger was not interviewed and also
quit. The Judge also found that because the sales manager was not
interviewed by the investigator, an adverse inference could be drawn
that he was also aware of the breaches of the policy. Eight employees
were terminated in total and one of the employees went before the
Ontario Relations Board. He noted that “breaches occurred all the
time. We knew about the breaches. Management told employees to go out
and sell as many cell phones as you can and whenever you can”.
The question in the case was whether or not the Plaintiff should have
been dismissed with cause without knowing any specifics as to why he is
being terminated and given an opportunity to respond to any specific
allegation. The Judge found that the onus was on the employer to show
cause for summary dismissal (just cause). Summary dismissal is a
severe punishment which requires justification of misconduct of a very
serious kind. The burden on the Defendant is a heavy one. The Judge
relied on the McKinley v. BC Tel which notes that each case must be
decided on some particular facts and circumstances. You must consider
the nature and seriousness of the dishonesty in order to assess whether
it is reconcilable with sustaining employment relationship. The Judge
noted that the Plaintiff had not sold a cell phone in the ten years he
spent with Best Buy. He was not an employee of the cell phone
department. He was a computer manager. He had general knowledge that
the cell phone policy was being breached however, he was not told that
the policy was being breached and he was not aware of any of the
methods the associates were using to breach the policy. The Judge
found that he knew vaguely that the policies were being breached and he
was in a difficult situation as it was not his department where the
breaches were taking place and he was likely trying to protect the cell
phone sales manager. The cell phone sales manager was most likely
trying to protect the store manager. Further, the Judge found that
rather then blaming the Plaintiff for what transpired in the case, the
Defendant should have reviewed its own ineptitude and have properly
investigated what was actually occurring at Store No. 605.
The Judge found that it seemed the Defendant’s position was that the
Plaintiff failed to be a whistle-blower therefore he deserved to be
terminated with cause. In hindsight, the Judge found that the
Plaintiff believed he made a mistake. He testified that had he been
presented with the results of the investigation, and had he been told
that associates were going to be terminated, he would have disclosed
that management condoned the breaches rather than having the associates
terminated with cause. The Judge found that the Plaintiff did not
intend to be dishonest or mislead his employer.
Ultimately in this case, the Plaintiffs termination was
disproportionate to the actions, facts and circumstances. His years of
exemplary employment did not deserve to end this way. He was employed
for almost 10 years, starting as a shipper and he rose the ranks to
department sales manager. At the time of this termination, he was a
store manager in training. A small percentage of employees reach this
plateau and he always received commendation for his work with no
negating factors. Ultimately this case fell on improper investigation
and improper store management. It is important that management adhere
closely to store policies and when breaches occur. Actions must be
taken immediately if violations are noted.
If you have any questions with respect to workplace investigations
and/or termination for cause, please do not hesitate to contact Matt
Lalande at Haber & Associates.
In the alternative you may fill out the contact form and Matt Lalande
or another lawyer at Haber & Associates will get back to you
without delay.