This document summarizes the types of just cause for dismissal in Canada. It discusses the two types of dismissals - with cause or without cause. If a dismissal is with cause, the employer has no further obligations to the employee. Otherwise, the employee may be entitled to notice pay, severance, or both. The employer bears the burden of proving just cause for dismissal and must consider all circumstances of the alleged misconduct. Common just causes include dishonesty, theft, harassment, and absenteeism. Performance issues also qualify but the employer must clearly communicate expectations and allow time for improvement. Off-duty conduct can also lead to discipline if it harms the employer's reputation. Statutory notice periods are also outlined.

1. You’re Fired!
Just Cause for Dismissal in Canada
Stuart Rudner
Toronto
May 30, 2012

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”
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3. For Just Cause
• Employer must prove:
– that the alleged misconduct took place,
and
– that the nature or degree of misconduct warranted dismissal
• The Contextual Approach: Must consider all
circumstances, not just alleged misconduct
• Proportionality is required
• Same set of facts can yield different results
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4. Types of Cause
• Dishonesty • Harassment
• Theft/Fraud • Intoxication
• Conflict of Interest • Absenteeism
• Insubordination / • Off-Duty Conduct
Insolence
• Performance Issues
• Breach of Rules/Policies
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5. Just Cause: Performance Issues
• Employer must:
– Set a clear standard
– Communicate expectations
– Measure the performance
– Take appropriate action
• Warnings (verbal and written) – document everything!
• Counseling
• Training
– Allow reasonable time for improvement
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6. 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
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7. • 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
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8. The Importance of the Investigation
• The importance of the investigation
– Ensure fairness, objectivity
– Often, employee response is critical factor in
determining appropriate discipline
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9. Vernon v. British Columbia (Ministry of Housing and
Social Development) (Liquor Distribution Branch)
• 30 year employee accused of bullying/harassment
• Known as “The Little General”
• 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
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10. Off-Duty Conduct
• Employees can be disciplined or dismissed
• Must show:
1. the conduct of the grievor harms the Company’s reputation or product
2. the grievor’s behaviour renders the employee unable to perform his duties
satisfactorily
3. the grievor’s behaviour leads to refusal, reluctance or inability of the other
employees to work with him
4. the grievor has been guilty of a serious breach of the Criminal Code and
thus rendering his conduct injurious to the general reputation of the
Company and its employees
5. places difficulty in the way of the Company properly carrying out its function
of efficiently managing its works and efficiently directing its working forces.
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11. Online Conduct
• Off-duty conduct that can lead to discipline
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12. Woodstock (City) v. CUPE Local 1146 (2010)
- worker fired after inappropriate comments to
summer students via texts
- female summer student made complaint for
harassment
- 20 year employee with no discipline history
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13. - Employee was fired for harassment and
abusing role as a supervisor
- nature of the texts – more than “social
bantering”
- Termination not upheld, employee was
reinstated with 2 month suspension and
demotion from supervisor position
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14. EV Logistics and RWU (2008 – BCCA)
- 22 year old employee posted
racist, violent and disturbing
comments
- entries identified the employer
- termination not upheld,
replaced with lengthy
suspension
-reasoning that off-duty conduct
of employee not specifically
targeted at individual employees
or customers
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15. Common Law vs Employment Standards Act
• Oosterbosch v. FAG Aerospace Inc.
• 4 warnings in 1 year for poor performance, poor attendance and
falsification of records.
• other evidence of absenteeism/ lateness, poor performance
• ongoing coaching/counselling sessions
• Conduct was casual or careless but not wilful, intentional or reckless
• ESA requires notice unless employee engages in “wilful misconduct,
disobedience or wilful neglect of duty that is not trivial and has not
be condoned by the employer”
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16. 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
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17. Statutory Notice Requirements
Length of Employment Notice Required
Less than 3 months None
3 months but less than 1 year 1 week
1 year but less than 3 years 2 weeks
3 year but less than 4 years 3 weeks
4 year but less than 5 years 4 weeks
5 year but less than 6 years 5 weeks
6 year but less than 7 years 6 weeks
7 year but less than 8 years 7 weeks
8 years or more 8 weeks
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18. Common Law: The Length of Notice
• Requirement: “reasonable” notice
of dismissal
• The Bardal Factors
• No “rule of thumb” or direct 1:1 relationship between
years of service and months of reasonable notice
• Beware the short-term employee
• Inducement
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19. Reasonable Notice Periods
3
2.5
2
Months/Year
of Service
1.5
1
0.5
0
.6 to 2.5 2.6 to 5 6 to 10 11 to 15 16 to 20 21 and 26 and 31 and 36 and
25 30 35 40
Years of Service
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20. 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
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21. 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
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22. Without Cause: Options
• Working notice
– must allow opportunity to
look for new employment
• Salary & benefit continuance
• Lump-sum
• Combination
• Dangers of failing to continue benefits
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• http://www.carswell.com/descriptionchrr.asp?DocID=7425&pgid=author&promo=102
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24. Thank you
Stuart E. Rudner
Partner, Labour & Employment Group
srudner@millerthomson.com
416.595.8672 or 905.415.6767
Twitter: @CanadianHRLaw
LinkedIn: Connect with me and join the Canadian HR Law Group
Blog: Canadian HR Law
http://www.hrreporter.com/blog/canadian-hr-law
Google+: Stuart Rudner
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25. www.millerthomson.com
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