Employers will sometimes discover things after an employee is terminated that gives them cause for concern. Whether this post-termination misconduct amounts to “just cause” is a complex issue. The issue was recently considered in Gillespie v. 1200333 Alberta Ltd. (which was an appeal of this judgment) where the employee was terminated, without cause, and removed certain documents that “identified PCN patients by name and contained their address, Alberta Health Care number, and other identification numbers. This was confidential information that the Appellant was not entitled to remove from the clinic, including after termination of her employment, pursuant to Non‑disclosure Agreements signed by the Appellant on February 1, 2007 and April 25, 2007”.
At the time of the termination, the employer was not aware of the removal of this information. In fact, the employer only discovered the removal of this information “several months later”. The question was whether this post‑dismissal discovery was cause for dismissal.
The Trial Judge found that the “post‑termination conduct was sufficient to ground termination for cause”.
The Court discussed the circumstances in which post-discharge evidence can be relied upon:
The case law with regard to the admissibility of subsequent event evidence indicates that there are two circumstances in which evidence of post‑termination conduct can be relied upon to establish grounds for dismissal: first, when the post‑termination conduct sheds light on the reasonableness of the dismissal for cause at the time it was implemented (Cie minière Québec Cartier v. Quebec,1995 CanLII 113 (SCC),  2 S.C.R. 1095 at para. 13); and second, when the post‑termination conduct reveals an undesirable aspect of the employee’s character, such as deceitfulness, that would itself justify his or her dismissal (Lake Ontario Portland Cement Co. Ltd. v. Groner, 1961 CanLII 1 (SCC),  S.C.R. 553 at 564). This second category of cases in which post‑termination conduct can be relied on is perhaps not without controversy: see the discussion in Saskatchewan Assn. of Health Organizations v. C.U.P.E., Local 3967, 203 L.A.C. (4th) 1 (Sask. Arb. Bd.). However, for purposes of this appeal, I will assume that post‑termination conduct can be relied upon in both of these circumstances.
The Court made the following observations:
- The case law that deals with post‑termination conduct makes it clear that the relevant dividing line in examining conduct is the time of termination of the employment contract (whether immediate or at the conclusion of a period of working notice)
- Misconduct before termination and misconduct after termination are subject to different analyses in terms of relevance to the issue of grounds for dismissal.
- No contracting party is entitled to fundamentally repudiate obligations under a contract, as the employer has certainly done in terminating employment, and to afterwards require the other contracting party to continue to comply with his or her contractual obligations.
- There are other ways to enforce the Non‑disclosure Agreements, that do not involve the illogic and unfairness of permitting an employer to retroactively justify its repudiation of an employment contract by an employee’s post‑repudiation breach.
The Court overturned the Trial judgment finding that post-termination conduct was sufficient to ground just cause in this case. Specifically, as noted above, the “timing” of the conduct (e.g. after the employee had been terminated) is what seems to have caused the appeal court concern.