Le congédiement immédiat pour faute grave

Par Me Paul-Matthieu Grondin, avec la collaboration d’Océane Marceaux

Dans une décision rendue par la Cour supérieure en 2023, Graceffa c. Otéra Capital Holding Inc., un cadre supérieur congédié sans préavis pour faute grave poursuit son ex-employeur.

Le demandeur occupe depuis 13 ans un poste de cadre supérieur à la Caisse de dépôt et placement du Québec lorsqu’il est congédié pour motif sérieux. Cela survient après qu’il eût accepté un paiement en argent comptant de 15 000$ de la part d’un individu inculpé pour trafic de stupéfiants, le tout s’étant déroulé dans les bureaux de la défenderesse. Cet événement rompt le lien de confiance entre le cadre et son employeur, ce qui justifie, selon ce dernier, le congédiement sans préavis du demandeur.

Le cadre conteste sa fin d’emploi auprès de la Cour supérieure, réclamant dans l’ensemble une compensation de plus de 8 000 000$. Il prétend notamment avoir droit à un délai de congé de deux ans et demi. Par ailleurs, il invoque que les événements ont gravement porté atteinte à sa réputation et ainsi nuit à sa capacité de se trouver un nouvel emploi. En effet, il faut savoir que l’employeur avait publié les conclusions de l’enquête menée dans son dossier, par souci de transparence envers le public.

Toutefois, la Cour supérieure estime que le manquement grave du demandeur constitue une cause juste et suffisante au fait qu’il ait été remercié sans préavis raisonnable. Concernant l’accord de dommages moraux et punitifs pour l’atteinte à la réputation, la cour rejette la demande. Elle évalue que l’employeur a agi en tant que personne raisonnable en voulant préserver la foi du public par la divulgation du rapport d’enquête.

Malgré tout, le demandeur se voit accorder la somme de 768 000$. Celle-ci est justifiée par le fait que l’employeur devait encore au demandeur une partie de la rémunération qu’il avait accumulé lors d’un congé payé en 2019. À cela est ajouté la prime annuelle de 2018 due au demandeur, s’élevant à 400 000$.

Voyez comment le tribunal motive sa décision :

1.3.6       The Personal Debt Collection Activities

[170]     The first Ground of Termination relied on by the Defendants relates to Graceffa’s acceptance, in his Otéra offices, of $15,000 in cash from a person owing money to Sainte Gabrielle. […]

[183]     Accepting an envelope containing that amount of cash is evidently problematic. Such a payment in cash raises prominent red flags and questions as to the provenance of the funds in question. Cash—as all know—is relatively untraceable and can thus be used to mask the illegitimate origin of funds, especially when used for comparatively large transactions. 

[184]     Indeed, the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations require various financial institutions to report large cash transactions to the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC).[157] A large cash transaction consists of the receipt of $10,000 or more in cash in a single transaction.[158] While this reporting requirement was not applicable to Graceffa, it is illustrative of the alarm bells that necessarily sound when an envelope containing thousands of dollars in cash is tendered for payment. 

[185]     In view of his obvious intelligence and wealth of experience in the financial world, the dangers of accepting a significant cash payment would necessarily have been apparent to Graceffa.

[186]     It is evident that Graceffa should have refused the payment proffered in cash by Lamontagne, even at the risk of his brother’s debt becoming entirely unrecoverable. The fact that the payment took place in Otéra premises compounds Graceffa’s fault and wholly removes this activity from the realm of the purely private.

[187]     Any reasonable person, learning that Graceffa had accepted such a cash payment in his office would have legitimate concerns. Graceffa was the head of a subsidiary of the Caisse—the public entity charged with managing funds used for the pensions of millions of Quebeckers. As such, public confidence in the Caisse—“le bas de laine des québécois”, to use a common expression—and its subsidiaries is of utmost importance and any hint of impropriety is intolerable. Such public confidence rests, in turn, on confidence in the probity and trustworthiness of the persons employed by the Caisse and its subsidiaries, particularly those holding senior executive positions.

[188]     The acceptance of an envelope stuffed with cash by an official with a Caisse subsidiary—a very senior executive in this case—raises reasonable suspicions of impropriety or even corruption. This is compounded here by the fact that the cash payment was made by a person with a criminal record and an undischarged bankrupt, whose assets, if any, ought to have benefitted the body of creditors generally. In this respect, the cash payment may have resulted in one of Lamontagne’s creditors being preferred over all the others.

[189]     In short, Graceffa’s acceptance of the cash payment from Lamontagne constituted an exceedingly grave error of judgment. Graceffa argues that he had no knowledge of the fact that Lamontagne would be paying in cash. Be that as it may, his decision to accept the payment once he realized that it would be made in cash is simply unjustifiable. 

[190]     Moreover, Graceffa states that he was unaware of Lamontagne’s criminal record and status as a bankrupt, as he did not read the reporting memorandum and examination transcript provided to him by counsel several months prior to the fateful August meeting. Even so, Graceffa demonstrated extraordinary imprudence in choosing to meet Lamontagne in his Otéra offices and to accept cash from a person he claims to have known nothing about. Important information was sitting in his email inbox or could have been readily obtained had he made a call to counsel.

[191]     By accepting the cash payment in Otéra’s offices, Graceffa engaged in activities that, should they become known by the public, would inevitably reflect negatively on Otéra and raise questions about the probity of its senior management and, by extension, the corporation’s own activities.[159]

[192]     The definition of conflict of interest in the Otéra Code of Ethics includes activities that create a concern capable of affecting one’s judgment to Otéra’s detriment or that might be potentially embarrassing for Otéra (paragraph 7.1 2)).[160] Graceffa’s personal debt collection activities in Otéra premises fell squarely within this category of conflict. These activities also engaged paragraph 4.7.3 of the Otéra Directors’ Code of Ethics.[161]

[193]     The Otéra Code of Ethics further instructs that, in case of doubt, one should always act in Otéra’s interests. […]

[194]     I am compelled to find that Graceffa’s actions and decisions on August 21, 2017, do not withstand public scrutiny for a senior executive of a subsidiary of mandatary of the Quebec State. Moreover, these actions have unquestionably resulted in an unfavourable perception towards Graceffa and by ricochet towards Otéra and indeed the Caisse.

[195]     Graceffa’s fault in accepting the $15,000 cash payment from Lamontagne in his Otéra office constitutes grave misconduct that irremediably severed the relationship of trust between Graceffa and the Defendants. In view of the fact that this relationship of trust between an employer and its senior executives is essential to continued employment, I am compelled to find that the ultimate sanction of termination is proportionate to Graceffa’s breach.

[196]     On its own, this misconduct constitutes a serious reason that justifies dismissal without reasonable notice within the meaning of article 2094 CCQ. The misconduct is compounded here by the fact that Graceffa’s interest and role in Sainte Gabrielle—which is what ultimately led him to become deeply involved in the collection of Lamontagne’s debt—was undisclosed and also in breach of various codes of ethics. 

[197]     When considered in the context of Graceffa’s debt collection activities, this latter breach further undermined the Defendants’ trust and confidence in Graceffa and confirms, pursuant to a holistic and contextual analysis, the existence of a serious reason for termination.

[198]     Graceffa argues that the Boards of Otéra and Ivanhoé Cambridge were not made aware of certain important facts that would have impacted upon their decision to terminate his employment.[163] He points to the fact that his brother had obtained a judgment against Lamontagne, that he was acting under a POA for his brother, that he signed a receipt for the payment (i.e., the Postponement Agreement), and that he was unaware of Lamontagne’s criminal background.

[199]     None of these elements eliminate the gravity of Graceffa’s fault in accepting an envelope with $15,000 in cash. At the risk of repetition, this envelope was received in premises belonging to his employer, from a person he chose to meet despite claiming to know nothing about him. There is simply no version of these events in which Graceffa’s conduct becomes acceptable.

[200]     In assessing the gravity of Graceffa’s misconduct, it is important to bear in mind that, at the time, he held the most senior position within Otéra. With such a position comes heavy responsibilities, significant decision‑making autonomy and corresponding expectations as to sound judgment and probity. Indeed, the good judgment of a senior executive and that person’s ability to make the “right calls”, in the best interest of the organization, lie at the heart of an employer’s decision to entrust them with weighty responsibilities and even the fate of the business.

[201]     Here, the gravity of Graceffa’s fault, committed by a senior executive employed by an entity entrusted with preserving and growing the retirement funds of millions of Quebeckers, cannot be understated. While Graceffa’s disciplinary record was untainted up until his termination, it is evident that his fault, in accepting the cash payment, so undermined the Defendants’ confidence in his judgment and probity that continued employment in the senior positions that he held became untenable. 

[202]     Finally, Graceffa submits that Ivanhoé Cambridge cannot rely on this Ground of Termination as the incident in question occurred when he was an Otéra employee. Based on the principle of relativity of contract (article 1440 CCQ), Graceffa argues that Ivanhoé Cambridge cannot invoke purported breaches of his employment contract with Otéra, as these are two separate and distinct legal persons. 

[203]     I do not accept this argument. Employers may legitimately terminate an employment relationship without notice where an employee commits a serious fault outside the immediate work environment and where that fault impacts on the employer’s work environment or business. […]

[204]      That same logic applies to misconduct committed, unbeknownst to the employer, prior to the employment relationship. Here, Graceffa’s fault in accepting an envelope containing a $15,000 cash payment in Otéra’s offices, fundamentally and irremediably undermined the trust that Ivanhoé Cambridge reposed in him. 

[205]     Ultimately, it is the destruction of that relationship of trust as a result of Graceffa’s misconduct that is the serious reason for termination without notice. In this respect, it matters little that the misconduct giving rise to the failure of trust occurred while he was employed by Otéra, rather than by Ivanhoé Cambridge. 

[206]     An organization must have utmost confidence in its senior executives. Ivanhoé Cambridge could no longer have that confidence in Graceffa. His misconduct as an Otéra senior executive necessarily impacted on Ivanhoé Cambridge’s business and could be relied on by the latter as a ground for dismissal without notice.

[207]     In view of the foregoing, the Defendants have discharged their burden and have established a serious reason permitting them to terminate Graceffa’s employment without notice.