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Ascent Celebrates Big Win in Just Cause Termination Case

David M. Brown

Co-Founder + Partner
November 15, 2021

As any employment lawyer will recognize, defending a just cause termination is a difficult task, particularly when dealing with long-service employees. The test to terminate an employee without compensation is well established, and requires evidence of behavior that is seriously incompatible with the employee’s duties, goes to the root of the contract and fundamentally strikes at the employment relationship.

Recently, Ascent lawyers David Brown and Victoria Merritt defended a just cause termination through 9 days of trial. The judgment in Golob v. Fort St. John (City), 2021 BCSC 2192 was recently issued, upholding the City’s decision to terminate. Interestingly, the court’s reasons in finding just cause were different than those originally put forward by the City at the time of Mr. Golob’s termination.

Background

Mr. Golob was an employee of the Fort St. John fire department for 12 years, the last two of which he held a senior management role as Deputy Fire Chief. While there was much witness testimony critical of Mr. Golob’s leadership style, he was never the subject of discipline prior to his termination.

During the spring of 2020, two incidents arose that gave rise to an internal investigation into Mr. Golob’s conduct. First, Mr. Golob was overheard by a firefighter describing a fire crew in profane and insulting language. Second, the Fire Department was preparing for the launch of a formal mentorship program, and the Fire Chief received reports that firefighters were refusing to be mentored by Mr. Golob.

In response to these two issues, the City elected to investigate Mr. Golob’s behavior under its Code of Conduct. Through the course of these interviews, the City spoke with 9 unionized firefighters, the union president and the Fire Department’s other deputy chief.

The results of the investigation were very consistent. All persons interviewed revealed dissatisfaction with Mr. Golob’s manner of leading. He was referred to as a ‘dictator’ and ‘toxic’. He was described as loud, brusque and profane. Based on these interviews, the City elected to terminate Mr. Golob’s employment for just cause.

After-Acquired Evidence

Following Mr. Golob’s termination, the City retrieved his company issued cell phone. On the phone, the City discovered a series of text messages between Mr. Golob and a fire captain. At the time, Mr. Golob was on a hiring committee for a new deputy chief. The hiring process was confidential, and the fire captain with whom Mr. Golob had the text message exchange was one of two final candidates in the selection process.

Through these text exchanges, the court found that Mr. Golob engaged in grossly inappropriate behavior, amounting to serious evidence of insolence. Mr. Golob suggested to the fire captain that he was being treated unfairly and the hiring process was favouring the other candidate. He referred to the other candidate as “highness”, and to his Fire Chief as a “prick”. In the event that the fire captain was not selected for the position, Mr. Golob counseled him to use his seniority to block union members who might be considered for promotion.

While the admissibility of this evidence was debated at trial, the court accepted that despite not being raised at the time of the termination, the text message evidence occurred prior to Mr. Golob’s termination, and was therefore highly relevant in considering whether a viable relationship continued to exist. This evidence was instrumental to the court in arriving at its decision.

Procedural Fairness

While the City conducted an investigation prior to terminating Mr. Golob, the court was highly critical of it for two reasons:

1)      Mr. Golob was not given an opportunity to speak to investigators prior to termination; and

2)      The City chose to investigate under the Code of Conduct, and not under other human resources policies available to it.

Of note, two separate but overlapping policies were referred to at length during the trial. The Code of Conduct policy provides for broad expectations of all staff during their employment with the City. Notably, the Code of Conduct does not provide for a detailed investigation process in response to possible violations of the Code. The Discrimination and Harassment Policy similarly prohibits conduct which could also be viewed to violate the Code of Conduct. However, the Discrimination and Harassment Policy also details an investigation process to be followed, which includes language on presenting the accused with allegations of misconduct and providing an opportunity to respond.

It was clear from the evidence that the City referred to both the Code of Conduct and the Discrimination and Harassment Policy during the course of its investigating and in terminating Mr. Golob’s employment. However, the court found that the City opted for the investigation process that was most convenient to it – that of the Code of Conduct.

The court was highly critical of the City in this regard. However, it also came to the proper conclusion that there is no right of procedural fairness in employment law, and while the investigation was flawed, it did not change the fundamental question in just cause terminations as to whether the proven misconduct goes to the root of the contract and fundamentally strikes at the employment relationship.

Outcome

Ultimately, the court issued a well-reasoned, thoughtful decision. It found that while Mr. Golob was guilty of misconduct, the behavior discovered in the investigation itself would not have amounted to a just cause termination on its own. However, when the text message exchange discovered after Mr. Golob’s termination is added to the assessment, the court found that dismissal was justified. The court specifically referenced how the text messages undermined the leadership of the Department, rendering the employment relationship damaged beyond repair and unsustainable.

Ascent Employment Law congratulates the City of Fort St. John on this important win, and thanks it for the privilege of working on this challenging and fascinating case.

 

If you are dealing with a just cause dismissal, contact us!