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