By Sheryl Smolkin
August 25, 2914
A 13-year employee of Ontario Lottery and Gaming Corporation fired without cause agreed to a settlement of 53 weeks’ salary plus outplacement fees of $3,500. After the agreement was signed and before the money was paid out, OLG tried to rescind the deal when it was discovered that she had misappropriated $1,268 collected from company employees for tickets to Canada’s Wonderland.
Brenda Dennis sued for enforcement of the settlement agreement in the Ontario Court of Justice. Justice O’Marra ruled that she was still entitled to the agreed upon severance package because it was totally disproportionate for OLG to view her conduct as a valid reason for termination of her employment.
This case highlights that generally an employer will not be able to depend on after-acquired information as just cause for termination, once a settlement agreement has been made. Also, depending on the facts, even flagrant misconduct might not constitute just cause in certain circumstances.
Dennis was 51 years old and a security manager at OLG supervising 55 employees when she was fired in October 2012 due to performance issues. For several years as a member of the social committee, she handled half-price Canada’s Wonderland ticket sales to employees.
In the summer of 2012 after Dennis accessed a dating website, she was contacted by parties who claimed they were in Nigeria and demanded money transfers to people in Africa. Unfortunately she was duped into sending them between $12,000 and $15,000.
In order to send the full amount to Africa, she borrowed $1,268 from the ticket revenue, fully intending to replace the funds before the Canada’s Wonderland agreed-upon reconciliation date at the end of November.
Because she was leaving the company, she was asked on October 11 and 12, 2012 where the cash and outstanding Wonderland tickets were kept but she did not disclose the shortfall. She testified at trial that she was reluctant to do so because she did not trust management and she was afraid they might rescind the settlement offer.
When OLG discovered the funds were missing, they called the police and Dennis was charged with theft of Wonderland’s property. She admitted that she took the money but did not confess to theft, as she always intended to replace the amount. Subsequently she paid back the full amount to the social fund and on December 13th the Crown Attorney withdrew all charges.
When she advised the company charges had been dropped in mid-December and requested the agreed upon amount of money, for the first time OLG mentioned an internal investigation and a possible “for cause” termination.
OLG’s January 2013 internal investigation report reported that Dennis readily admitted to theft of the missing social committee funds. Therefore they concluded she stole money from the Crown corporation and refused to make any severance payments.
At trial, Judge O’Marra accepted there was no criminal intent because she may have reasonably believed that her use of a portion of the funds for personal reasons was ill-advised, but not criminal. He also noted that Dennis’ role selling tickets for Canada’s Wonderland was not part of her job and the arrangement with Wonderland did not involve an OLG customer.
In addition, the Judge considered OLG’s investigation deficient, as they wrongly concluded that Dennis acknowledged a criminal act. He said that theft by an employee may be provable on a civil standard that that falls short of the criminal standard of proof beyond a reasonable doubt.
Therefore he ruled that Dennis was entitled to enforcement of the termination without cause settlement of 53 weeks pay and outplacement fees of $3,500 plus interest. Tony Bitonti, OLG Senior Manager, Media Relations has confirmed that the decision will not be appealed.