In Canada, employment law generally recognizes that “breach of trust” by an employee is a serious violation of the employment relationship and can be grounds for disciplinary action, including termination of employment.
Canadian employers should view “breach of trust” issues in the workplace as serious violations of the trust that is necessary for a positive and productive work environment.
The extent to which an employer can take disciplinary action against an employee for breach of trust will depend on the specific circumstances of the case and the terms of the employment contract. Canadian common law has established that an employer has the right to terminate an employee for just cause, which includes a breach of trust. However, an employer must have a valid reason for termination and must follow the principles of natural justice by providing notice or pay in lieu of notice, or providing an opportunity to respond to the allegations.
In addition, certain laws, such as the Criminal Code of Canada, prohibit certain types of conduct, such as theft, fraud, and embezzlement, which can also be considered as breach of trust. An employee who is found guilty of committing a criminal offense may be subject to disciplinary action by the employer, including termination.
The following is a list of examples of “breach of trust” in order of seriousness:
- Fraud or embezzlement: These are some of the most serious forms of breach of trust, as they involve the illegal misappropriation of company funds or assets.
- Theft: This includes taking company property or resources without permission.
- Dishonesty: This includes lying or providing false information to the employer or other employees.
- Sabotage: This includes intentionally damaging or undermining the company’s operations or reputation.
- Confidentiality breaches: This includes disclosing confidential information about the company or its clients without permission.
- Misuse of company resources: This includes using company resources for personal gain or activities not related to work.
- Harassment or discrimination: This includes creating a hostile work environment for colleagues or clients based on their race, gender, religion, etc.
- Non-compliance with company policies: This includes failing to follow established procedures or disregarding company rules.
It is important to note that these are not mutually exclusive and any one employee conduct can have multiple aspects of breach of trust. Additionally, the severity of the breaches and the impact on the employer will vary depending on the specific circumstances of each case.
Also of importance when dealing with “breach of trust” is whether the breach is a once of or isolated occurrence or a habitual offense.
When an employee has committed a habitual breach of trust, it can have a significant impact on the options available to the employer. Habitual offenses indicate a pattern of misconduct rather than an isolated incident, which can make it more difficult for the employee to argue that the behavior was a mistake or an exception to their usual conduct.
Habitual offenses can also make it more likely that the employee’s actions were premeditated or intentional, which can be considered as a more serious breach of trust. In such cases, the employer may be more likely to take disciplinary action, including termination of employment, as the employee has demonstrated a consistent disregard for the company’s policies and expectations.
Additionally, the employer may also have grounds for legal action against the employee, such as a civil lawsuit for damages, if the employee’s actions have resulted in financial losses for the company.
It is important for employers to document any instances of misconduct and to keep records of any previous disciplinary actions taken against the employee. This will help the employer to build a case if they decide to take disciplinary action and it will also help to demonstrate that the employee’s actions were habitual.
The most comprehensive counter measure for employers to employ against “breach of trust” is to have detailed policies that control the employee conduct.
- Code of conduct: A code of conduct outlines the expected behavior and ethical standards for employees, including standards for honesty, integrity, and confidentiality.
- Anti-fraud policy: This policy should outline the company’s stance on fraud and embezzlement, and include specific procedures for identifying, reporting, and investigating potential fraud.
- Whistleblower policy: This policy should provide a process for employees to report concerns about misconduct or unethical behavior, including protection from retaliation.
- Conflict of interest policy: This policy should prohibit employees from engaging in activities that may create a conflict of interest with their job duties and responsibilities.
- Information security policy: This policy should outline the measures the company takes to protect confidential and sensitive information, and the employees’ responsibilities for maintaining security.
- Harassment and discrimination policy: This policy should prohibit any form of harassment or discrimination in the workplace and provide a process for employees to report any incidents.
- Disciplinary policy: This policy should outline the steps that will be taken in the event of a breach of trust, including the process for conducting investigations and taking disciplinary action.
- Regular training and education: Regular training and education programs on topics such as ethics, integrity, and compliance can help to prevent breaches of trust and ensure that employees understand the company’s policies and expectations.
- It’s worth noting that these policies should be reviewed regularly and updated as necessary to ensure they are up-to-date with the current legislation and the company’s needs. Employers should also ensure that the policies are clearly communicated and understood by all employees, and that they are consistently enforced.
Then there’s the matter of getting to the bottom of any “breach of trust” incident/s. The primary tool available to employers is that of investigations. Ensuring that every bit of information is obtained and nothing is missed is of paramount importance.
It is important to be aware of the following aspects:
- Gathering evidence: In many cases, it can be difficult to gather evidence of misconduct, especially if the employee is actively trying to cover their tracks. This can make it difficult for the employer to prove that a breach of trust has occurred.
- Determining intent: Determining whether an employee’s actions were intentional or unintentional can be difficult. For example, if an employee has made an honest mistake, it may not be appropriate to take disciplinary action, but if their actions were intentional, it may be more severe.
- Conflicting accounts: In some cases, there may be conflicting accounts of what occurred, which can make it difficult for the employer to determine the truth.
- Employee’s rights: Employers must be aware of employees’ rights and ensure that investigations are conducted fairly and in compliance with all relevant laws and regulations, such as the Canadian Human Rights Act and the Canadian Labour Code.
- Privacy concerns: Employers must also be mindful of privacy concerns when conducting investigations, as they may need to access sensitive information about employees or clients.
- Time-consuming: Investigations can be time-consuming and resource-intensive, which can be a burden for the employer.
- Retaliation: Employees may be afraid of retaliation if they report a breach of trust, which can make it difficult for employers to uncover misconduct.
- Potential legal actions: Employers must also be aware of the potential legal actions that might arise from the breach of trust, both from the employee and third parties.
To mitigate these difficulties, employers can have clear policies and procedures in place for reporting and investigating breaches of trust, and also involve legal counsel when necessary. Additionally, employers should ensure that investigations are conducted in a fair and impartial manner and that all employees are aware of their rights and the company’s policies.