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Just Cause: Not Necessarily a Lost Cause

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Stuart spoke about Just Cause termination at the HRPA annual conference and trade show on January 24, 2014.

Stuart spoke about Just Cause termination at the HRPA annual conference and trade show on January 24, 2014.

Published in: Law, Business, Technology

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  • 1. HRPA Annual Conference & Trade Show January 24, 2014 Toronto Presented by Stuart E. Rudner Just Cause: Not Necessarily a Lost Cause
  • 2. 2 Dismissals  2 types: With cause or without cause  If with cause, no further obligation to employee  Otherwise, need to assess employee’s entitlements to notice/pay in lieu/severance  No “near cause”
  • 3. 3 Dismissals for Just Cause  “Capital Punishment of Employment Law”  Employer must prove: 1. that the alleged misconduct took place, and 2. that the nature or degree of misconduct warranted dismissal, bearing in mind all relevant circumstances  Proportionality is guiding principle – “punishment must fit the crime”
  • 4. The Contextual Approach  Employer must consider all circumstances, not just alleged misconduct – Length of service – Disciplinary history – Nature of position  No absolute rules  Same set of facts can yield different results 4
  • 5. Off-Duty Conduct  Generally, what you do on your time is your business  Unless – The conduct renders the employee unable to perform his duties satisfactorily. – The conduct interferes with the efficient management of the operation or workforce. – The conduct leads to a refusal or reluctance of other employees to work with him. – The conduct harms the general reputation of the Employer, its product or its employees. 
  • 6. 6 Reputation • Teenage victim of bullying commits suicide • Facebook memorial • Individual posts: “Thank God this b---- is dead” • He and his employer are readily identifiable • Just cause for dismissal?
  • 7. 7 • Lougheed Imports Ltd (West Coast Mazda) v. UFCS Local 1518 (2010) – employees fired for postings on Facebook – posting included homophobic slurs and threats online against bosses – “don't spend your money at West Coast Mazda as they are crooks out to hose you and the shop ripped off a bunch of people I know”
  • 8. 8 Harassment Post on co-worker’s wall  “I loved the skirt you were wearing today. You have the sexiest legs in the office!” “I hope you have another short skirt you can wear tomorrow – maybe no hose this time?”
  • 9. 9 Performance Issues Employer must:  Set a clear, reasonable standard  Communicate expectations  Measure the performance  Take appropriate action – Warnings (verbal and written) – document everything! – Counseling – Training  Allow reasonable time for improvement
  • 10. Breach of Policies In order to discipline, must show: 1. That there was a clearly worded policy in place at the time of the alleged infraction; 2. That the employee in question was aware, or ought to have been aware, of the policy; 10
  • 11. 3. That the policy was consistently enforced; 4. That it was clear that breaches of the policy would lead to discipline, up to and including dismissal; and 5. That the policy was reasonable. 11
  • 12.  Lifting wheelchair-bound employee via forklift – not cause: Barton v. Rona Ontario Inc. (2012)  Lighting co-worker on fire – not cause: Dryco Drywall Supplies Ltd. And Teamsters Local Union No. 213 (2012) 12
  • 13. Implementing Policies A. Have a policy B. Use clear and unambiguous language C. Keep the policy up to date D. Publicize the policy E. Make employees aware of concerns F. Ensure supervisors and managers are aware of the policy and how to monitor G. Monitor behaviour H. Discipline violators
  • 14. 14 Setting clear Rules • 24 pictures of “sunshine girls” – “ Although the nature of the pictures are offensive to a segment of society and may be offensive to some fellow employees… without attempting to attach a label to these pictures it [is] sufficient to say that for the purpose of this arbitration they are not as labeled by the Employer…. “pornographic, sexually explicit pictures”…”
  • 15. “Zero Tolerance”  Courts will not necessarily accept this – will determine appropriate punishment Teck Coal Ltd. v. U.S.W., Local 9346 (2011)  Employee riding on truck, undid seatbelt, stepped out onto deck, held onto doorframe & tossed apple into grader  5 day suspension imposed 15
  • 16. 16 Threats & Violence After Bill 168  Employee with history of anger issues  “Don’t talk about Brian - he’s dead.” “Yes, and you will be too.”  the utterance of a threat of violence – for the purpose of intimidation - constitutes an act of violence  this is true regardless of whether or not: – the person issuing the threat has any intention to follow through – the person issuing the threat has any ability to follow through – the person receiving the threat feels afraid
  • 17. 17  employers cannot ignore, dismiss, or trivialize reported threats and incidents  reported incidents must be thoroughly investigated and addressed  when considering how to discipline an employee for uttering a threat, an employer must: – place extra weight on the seriousness of this sort of misconduct – assess the likelihood that the misconduct could or would be repeated if the worker remained in the workplace – act in a manner which gives due consideration to the safety of other workers
  • 18. Contrast with Overwaitea Food Group and UFCW, Local 1518 (FS Grievance), Re  Grievor found to have threatened to bring gun into store  Allowed to continue working – employer not concerned  Dishonest in investigation  Just cause found 18
  • 19. 19 The Importance of the Investigation  Investigate first  Ensure fairness, objectivity, thoroughness  Give opportunity to respond  Often, employee response is critical factor in determining appropriate discipline
  • 20. Vernon v. British Columbia  30 year employee accused of bullying/harassment  Known as “The Little General”  Offensive language, racial and other inappropriate comments
  • 21.  Investigators: – Pre-judged – Attacked accused and those who supported her – Misled decision-makers in report  Result – 18 months’ notice – $35k in “The Damages Formerly Known as Wallace” – $50k punitive damages 21
  • 22. 22 Without Just Cause  Notice of Dismissal or Pay in Lieu  Two sources of entitlement – Employment Standards Act / Canada Labour Code – Common Law  Can contract out of common law
  • 23. 23 Common Law: The Length of Notice  Requirement: “reasonable” notice of dismissal  The Bardal Factors 1) Length of service 2) Age 3) Position / Character of Employment 4) Availability of Similar Employment
  • 24. What is “reasonable”?  No “rule of thumb” or direct 1:1 relationship between years of service and months of reasonable notice  Beware the short-term employee  Inducement 24
  • 25. 25 Reasonable Notice Periods 0 0.5 1 1.5 2 2.5 3 .6 to 2.5 2.6 to 5 6 to 10 11 to 15 16 to 20 21 and 25 26 and 30 31 and 35 36 and 40 Years of Service Months/Year of Service
  • 26. 26 0-2 Years of Service Position Average Range Clerical 2.82 .2-12 Supervisory 3.67 .2-9 Sales 3.54 .01-15 Lower Mngmnt 3.42 1-10 Upper Mngmnt 6.76 3-12.75
  • 27. 27 17-19 Years of Service Position Average Range Clerical 10.58 6-15 Supervisory 12.63 9-16 Sales 13.67 8-18 Lower Mngmt 13.38 7-24 Upper Mngmnt 18.14 12-24
  • 28. The Changing Times  End of mandatory retirement, people working longer --> Wrongful dismissal claims by workers in 70s and 80s!  Recent decision: I do not think there is a place in this social reality for an automatic presumption that persons should or would naturally retire on reaching senior age. 28
  • 29. The Changing Times Di Tomaso v. Crown Metal Packaging Canada LP: there is recent jurisprudence suggesting that, if anything, (position/character of employment) is today a factor of declining relative importance. 29
  • 30. Employment Agreements  Use them!  Do it properly – Before there’s already an agreement – With consideration – Explained and understood – Independent legal advice
  • 31. Termination Clauses  Avoid uncertainty of “reasonable notice” & reduce dismissal costs  Use clear language  Don’t go below employment standards  Address benefits  Address mitigation 31
  • 32. Termination Clause: Benefits  Employer sought to enforce termination clause  Termination clause provided for pay in lieu of notice of termination, but did not provide for continuation of benefits  Although the employer did, in fact, continue employee’s benefits during notice period, by failing to require it, the contract provided for less than the ESA and was therefore unenforceable.  As a result, common law requirement of reasonable notice applied: Stevens v. Sifton Properties Ltd., 2012 ONSC 5508
  • 33. Mitigation & Termination Clauses  Employment contract provided that employee would be entitled to 6 months of notice, or pay in lieu thereof, in the event he was dismissed on a without cause basis.  No mention of mitigation  Within weeks of the dismissal, employee obtained new employment with comparable compensation.  Ontario Court of Appeal: If employment contract contains a termination clause, employee will not be required to mitigate his or her damages by seeking new employment unless the clause specifically says so Bowes v. Goss Power Products Ltd., 2012 ONCA 425
  • 34. 34 Stuart E. Rudner srudner@rudnermacdonald.com 647.255.3100 www.rudnermacdonald.com Twitter: @CanadianHRLaw LinkedIn: Connect with me, join the Canadian HR Law Group and visit the Rudner MacDonald Page Blog: Canadian HR Law http://www.hrreporter.com/blog/canadian-hr-law FaceBook: Rudner MacDonald Page Google+: Canadian HR Law, Rudner MacDonald Page YouTube: Rudner MacDonald channel