Dismissal With
Cause (original week 10)
Revised readings:
220-226 (Ch 11); Ch 13 p.
248; Ch. 14 (255-56;
259-275), and Kelly v. Linaner
(supp)
The General Rule
in relation to law of dismissal from employment:
A non-union Er can dismiss an
employee for any reason it likes, provided it gives the employee “reasonable
notice” … BUT .. don’t even have to give reasonable
notice if the ee has committed a serious breach of the employment contract
Question we consider now is when has an employee done
that?
Question is relevant to both common law and the ESA
1. ESA
cause for dismissal with statutory notice
The ESA requires employers to give notice of termination
… just like the common law
requires “reasonable notice” (more on this next week), but it is “minimum”
notice, so common law “reasonable” notice is often a longer period than minimum
ESA notice
But under ESA … Er does not have to give notice if the ee
is “guilty of willful misconduct, disobedience, or willful neglect of duty that
is not trivial and has not been condoned by the Er” (see p. 248)
Usually, there must be some element
of willfulness -- just being a
poor worker is not cause for dismissal without notice under ESA
Often Er will allege cause and refuse to pay notice under
ESA or common law ---
2. Common
law “cause” for dismissal without notice
Progressive Discipline
First, consider whether non-union Er can impose “progressive
discipline” - apply progressively more serious discipline for misconduct
.. e.g., gives ee warning that if they don’t ship up, they will be dismissed
Pages
220-22 discusses the benefits of doing this -- but non-union employer is limited in
what it can do without breaching contract .. Er can give written warnings
.. and probably a paid suspension
(if there are reasonable grounds for doing
this)
BUT cannot suspend an employee WITHOUT PAY … unless the
contract gives the Er that right … and few do … because implied term of contract is that Er will permit ee
to come to work (that is why a
layoff is usually also a breach of contract, see p. 224) …
Point raised in the case referenced on p. 223 (Haldane v.
Shelbar Enterprises) and the supplemental
case called Carscallen (week 3)
.. an ee can treat an unpaid
suspension as a constructive dismissal, quit, and sue for reasonable notice
What is “cause” for dismissal without reasonable notice
under the Common Law?
Your text walks through various grounds for dismissal on
pages 259-275 . we reviewed some
of these in the lecture
A Dishonesty
Dishonesty is breach of employment contract because ---
implied term of employment contracts is that ees be honest with Er
But question remains: how dishonest must an ee be to justify
Er terminating ee without notice? Any dishonesty, or just serious dishonesty?
Cases on Dishonesty
1. McKinley
v. BC Tel (p. 260)
Facts:
EE who missed work for high blood
pressure and stress didn’t disclose to Er that his doctor said he could return
to old job with medication, instead told Er other part of doctor’s advice, that
the er accommodate him by finding less stressful job ..
SCC: EE was not completely
forthright with ER, but not dishonesty not sufficiently serious to undermine
the continuance of the employment relationship … ER did not have cause to dismiss without notice, and
EE entitled to reasonable notice
Point: Not every act of dishonesty
is grounds for dismissal without notice …
only ones that are sufficiently serious that they undermine the future
viability of the relationship
2. Lister v. BC Ferries (p. 261)
Facts: Ee took home some paint from Er, puts it in garage
for 6 months. When Er learns this,
it fires ee for theft.. Ee says
she intended to take the paint to recycling centre but for variety of reasons,
didn’t get to it .. no intention to steal
Court: Er did not establish that ee
intended to steal the paint … ee’s
explanation plausible … therefore
no cause to dismiss without notice
.. Awarded 15 month’s
salary as notice
Note on cases where ER alleges criminal conduct by EE: ER here alleged theft, which is a crime – very
serious allegation, because can have serious impact on EE’s reputation and
ability to get new job .. therefore courts require ERS to prove alleged
criminal conduct on a high standard proof: “clear and congent” evidence. This isn’t as high as “beyond a reasonable doubt”, used in
criminal trials, but is still a higher standard of proof that “balance of
probabilities”, which is the normal standard in employment law cases
3. Weisenberger
v. Marsh Canada (p. 262)?
Facts:
Ee ripping off clients by charging
a premium and putting money into the coffers of the local branch office of the
company … EE does not actually
keep the money .. no direct benefit to him … plus, he claims his supervisor told him to do it, so he
didn’t know it was wrong
Court: Question is whether ee knew that
Er would not condone the scheme if it new about it … court finds EE must have known that it is wrong .. therefore this was a scheme
designed not to be detected by employer …
this is cause for dismissal without notice .. even though ee did not
personally benefit
B. Off
Duty Conduct
Can what an employee does when she is not at work be grounds for dismissal without notice?
We discussed whether it should be. Should Ers be able to fire someone without
notice for behaviour outside of working hours?
Courts have said usually what an ee does on their free time
is none of er’s business … Except, if
that behaviour can have a direct negative bearing on er’s economic interests
So.. example in
your text: Professor dismissed for being found guilty of insurance fraud …
University says, having profs engage in fraud undermines integrity of
university
I gave you another case called Kelly v. Linamer
Facts: Good employee, but arrested for
possession of child porn .. er is
largest er in Guelph .. very
active in community, including funding all sorts of child charities and
activities … arrest all over
newspapers .. ees don’t want to work with him .. he pleads guilty … Er dismissed with cause (no
notice) … he challenges this…
Court:
Er wins -- arrest and conviction for child
porn has direct bearing on employer’s reputation in the community .. and ee’s ability to do his job,
since ees he directs and clients may not want to work with him .
Important that Er prominent corporate citizen .. Might not be same result if ee’s arrest
had attracted no media attention …
C. Insubordination
What if an employee disobeys an order or gets nasty with er?
My Er says, “Doorey, hurry up and
finish that damn job” and I yell back “bite me, and mind your own damn
business”
Should er be able to dismiss me without notice?
In general, unless incident is very
bad and er suffers some quantifiable harm … courts have ruled that a single incident of insubordination
and insolence not enough
Again, court asking whether incident sufficiently serious to
completely undermine possibility of future trust between er and ee
Henry v. Foxco (p. 264)
Facts: Supervisor told ee to hurry up and affix
decals to vans … ee gets mad and
says, “go ahead and fire me” …
supervisor says, “ok you’re fired”
Court: this was not a sufficiently
serious incident of insolence and insubordination to warrant dismissal without
notice .. Punishment has to be proportional
to the misconduct … Court says
dismissal without notice warranted where:
1.
the employer could not be expected to work with the employee
again
2.
incident undermined managerial authority and credibility in
the workplace
3.
and, the employer suffered some real business harm (money or reputation)
These conditions not met here … Er should have let ee cool
off and assessed some lesser penalty
***
In assessing ee behaviour is sufficiently serious to give
cause for dismissal without notice …
ee’s past record is also relevant
.. It adds
context to the assessment of whether relationship has been destroyed by the
incident
So in Mothersele v. Gulf Canada (265): long
service ee has complained for a while that company not properly securing its
information .. Er tells him he has a bad attitude, and EE says he will delete
his files and leave no tracks .. He’s dismissed for cause
Court: comments need to be understood in context of his good record
and concern about security of company ..
he was frustrated, but should be given more of a chance to explain his
comments … not cause for
dismissal without notice
D.
Incompetence
Not easy for Er to convince a court that ee’s performance is
so far below standard that he/she should not be entitled to notice of
termination … usually Ers just give the notice
Text, p. 267, lists factors courts look at to determine if
ees’ conduct so awful that forfeits right to reasonable notice
E. Disobedience
Courts look at whether seriousness of disobedience
sufficient to warrant ee forfeiting notice … look at important and
reasonableness of Er’s order, and the ramifications of the ee not obeying
Facts: ee told to
remove ice with ax, but instead uses truck .. causes minor damage to truck … Er
dismisses for cause
Court:
ee disobeyed an order, but overall
not very serious … ees have used
truck to remove ice before --
potential harm to ee minor here … ee offered to pay for the truck damage
.. EE entitled to reasonable
notice
Er has rule prohibiting sex between ees – Dooley fired
for cause for breaking the rule (outside of workplace)
Court: no harm to Er here … two consenting adults, off-duty, and
Dooley is not in a position of authority over other ee, so no conflict of
interest concerns … rule it self is unreasonable … Dooley entitled to notice
F. Absenteeism/Lateness
(268)
Culpable absenteeism
describes absents when ee is blameworthy (slept in, took day off to be with
kids, to go to movie, etc) ..
Innocent absenteeism is
non-blameworthy (disability, religion)
A
single incident of absenteeism would not be enough to be cause .. usually Er must build a record, with some
progressive discipline (warnings) .. and show absent
record worse than other ees
Innocent absenteeism can raise human rights issues: remember Hydro Quebec (week 4) ..
Er can dismiss for innocent abseenteism when: (1) past record of absents
is excessive; and (2) medical evidence indicates that ee will not be able to
return to work for foreseeable future
Remember that if reason for absence is not a disability (or
other prohibited ground in human rights legislation), then it is just a case of
culpable absenteeism .. no need to
consider duty to accommodate
Ouimette
v. Lily Cups (269), Human Rights Tribunal
Ee
fired for being absent due to flu …
Tribunal says flu is not a ‘disability’ within
meaning of human rights legislation .. therefore, human rights code doesn’t apply here … human rights complaint dismissed
Note: Oimette might still have had an argument that
she is entitled to reasonable notice
under common law, because her
absence wasn’t cause for dismissal without
notice, but the human rights Tribunal doesn’t decide that, a court does
We discussed what options would be available to ee who is
fired without notice for missing work due to a broken leg:
1. Sue
for wrongful dismissal in court, asking for “reasonable notice” because
Er does not have ‘cause”, or
2. Bring
a human rights complaint, if a broken leg can be considered a disability
… if it can, then human rights Tribunal could order back wages and
benefits, plus reinstatement
OHRC
v. Gaines Pets Food (269)
Facts: EE missed 6
months due to cancer, then returns, but fails to meet a condition Er imposed
upon her return to work to maintain at least average attendance level of other
ees … Er fires her for
Court: overturns Human Rights
Tribunal decision which had ruled no discrimination … Court rules that
condition imposed upon her because of her absences due to cancer (disability) … therefore she has an attendance
standard to meet that other ees were not expressly required to meet because of
her disability … this is
discrimination, even though had she not had cancer, the employer would have
been able to fire her for her absenteeism
If
any part of the reason that a person is fired is due to her disability,
then that is a violation of HRC
G. Sexual
Harassment
Implied term in all employment contracts that ees and ers
will not engage in harassment at work … if harassment is on a prohibited ground
in HRC, then HRC deals with it too … if harassment not on prohibited ground,
still may be breach of employment contract implied term
When is harassment grounds for dismissal without notice?
Supervisor makes sexual comments to
female summer students … Er
investigates and dismisses for cause
Court: this is cause
.. Bannister in a position of
authority and he created a poisoned work environment for women … Er had given him training, yet he
ignored it …
EE engages in outrageous conduct with subordinates,
including affairs, promises of benefits in exchange for sex, and naked hot tub
parties at work conventions .. dismissed for cause
Court: this is cause .. his behaviour at the conferences still
part of work duties … was in a
position of power over ees … so can’t say women did these things completely
consensually .. it was his job to
prepare no harassment policy .
H. Intoxication
Implied term that ees will not report to work intoxicated
… if ee is addict, then duty to
accommodate arises … if not addict, then no duty to accommodate … but when is
reporting to work drunk or on drugs grounds for dismissal without notice?
Ditchburn
v. Landis (274)
EE gets loaded with client a lunch .. drives client home
while drunk, then gets into a fight with him .. Er fires him for cause .. EE is 60 years old, with nearly
30 years service
Court: EE
breached contract by his conduct … BUT, he is long service ee with a good
record … this was an isolated incident of poor judgment … Er should have given
EE benefit of the doubt and another chance
EE awarded almost the maximum notice a court will
order (see next week) – 22 months
notice .. plus another $15,000 aggravayed damages (explained next week), which is ordered when Er is considered
to have acted high-handedly and mean
So we see that a single incident of drunkenness will not
usually be cause for dismissal without notice, at least for a long service ee