just cause is not a lost cause
TRANSCRIPT
Just Cause is Not A Lost Cause:
Summary Dismissal Since McKinleyOntario Bar Association
Current Issues in Employment Law 2016
Presented by Stuart E. Rudner & Richa Sandill
1. Justifying the “Capital Punishment of Employment Law”
2. Is a single instance of misconduct sufficient?
3. Building the Just Cause Wall Brick by Brick4. Dealing with performance concerns and
off-duty conduct 5. Consequences of failed / false allegations
of cause: extraordinary damages
Overview
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The Capital Punishment of Employment Law
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Just Cause: Is it a Lost Cause?
No severance, no notice, reputational loss, proof of misdeed leading to dismissal
Courts reluctant to uphold arbitrary summary dismissals
Tong v. Home Depot of Canada: “capital punishment” of employment law
HIGH THRESHOLD TO MEET
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How Hard is it Exactly? Racist slurs between co-workers – serious, but dismissal was “too harsh” given social aspect of relationship – Evraz North America and USW, Local 6034 (2015)
Plaintiff with clean record should not have been dismissed for failing to disclose incident w/ drunken co-worker that got out of hand - Christie v. CitiFinancial Canada Inc. (2015)
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The McKinley TestMcKinley v. B.C. Tel., 2001, the Supreme Court of Canada: More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or indirectly inconsistent with the employee’s obligations to his or her employer. “In accordance with this test, a trial judge must instruct the jury to determine: (1) whether the evidence established the employee’s deceitful conduct on a balance of probabilities; and (2) if so, whether the nature and degree of the dishonesty warranted dismissal.”
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What Does the Employer Have to Prove?
1. 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”*
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The Contextual Approach is Key!
Employer must consider all circumstances, not just alleged misconduct– Length of service– Disciplinary history– Nature of position– Response to allegation – Mitigating factors
Same set of facts can yield different results
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Is a Single Incident of Misconduct Sufficient?
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The McKinley Effect No “automatic” dismissals Courts take contextual approach Certain types of misconduct more
likely to attract cause dismissal:– Dishonesty– Workplace harassment/violence– Insubordination/insolence– Clear breach of policy/conflicts of interest
Be careful about zero tolerance
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DISHONESTY: Messier-Dowty Inc. and IAMAW, Local 905
Facts: Grievor caught by surveillance repeatedly stealing food from cafeteria and automatically dismissed in spite of clean record
Just Cause? Yes
Reasoning: Seriousness is the greatest factor in justifying dismissal, and repeated acts calling character into question justified automatic dismissal
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HARASSMENT: Fortis Energy Inc. v. IBEW
Facts: Grievor stalked wife’s supervisor using company vehicle, was summarily dismissed after investigation
Just Cause? Yes
Reasoning: Both the stalking and the breach of employer’s trust to use vehicle for work purposes only were adequate to justify summary dismissal; grave misconduct on company time in company vehicle
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INSUBORDINATION: Cotter v. Point Grey Golf and Country
ClubFacts: Senior employee spoke
publicly about tax issue despite of clear instructions not to do so; dismissed when discovered
Just Cause? Yes
Reasoning: Applying contextual approach, Plaintiff’s actions had been unreasonable contravention of lawful command
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CONFLICT OF INTEREST: Ross v. IBM
Facts: Plaintiff discovered to be carrying on business for his independent private software company during IBM work hours; summarily dismissed
Just Cause? Yes
Reasoning: Severe breach, expected to devote all energy and time to job; conduct was deceitful given honour system in place
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Building the Just Cause Wall
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Progressive Discipline No hard and fast rules about what =
just cause Warnings of consequences Documentation of infractions Best practice: clear warnings, progressive
discipline, culminating incident Minor incident can be “culminating
incident”
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Just Cause Wall Built Well: Re Hayden and Bell
Solutions Hayden and Bell TeFacts: Discipline for social media use
during work hours included verbal warning, letter, suspension, and then final warning. Found sleeping at desk, after which dismissed.
Just Cause? Yes
Reasoning: Sleeping incident alone not enough, but put together with repeated warnings it = culminating incident for just cause
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“Cause” It’s Still PossibleMolloy v. Epcor Utilities: cumulative effect of dishonest actions e.g. stealing office supplies, instructions to destroy records
Reale and Light Speed Logistics Inc., Re: Thorough use of progressive disciplinary measures on four of five incidents of misconduct made it reasonable that the fifth incident would = culminating incident
Hoang v. Mann Engineering: Failure to complete tasks, follow multiple instructions, and proceed with projects = wilful obedience repudiating contract
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Performance and Off Duty Conduct
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Performance IssuesEmployer must:Set a clear, reasonable standardCommunicate expectationsMeasure the performanceGive clear warning of consequencesTake appropriate action
– Warnings (verbal and written) – document everything!
– Counseling– Training
Allow reasonable time for improvement
Can you Discipline for Off-Duty Conduct?
Generally, what employees do on their own time is their business
Unless– The conduct renders the employee unable to
perform his or her 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 or her.– The conduct harms the general reputation of the
Employer, its product or its employees.Does it impact negatively employment
relationship or employer?
Recent Incidents Mr. Lube employee: “Any dealers in
Vaughan wanna make a 20sac chop? Come to Keele/Langstaff Mr. Lube, need a spliff or two to help me last this open to close.”
Hydro One employee: “F*** her right in the P****” on live television.
Jian Ghomeshi
Case Law Examples• PERFORMANCE ISSUES: Rogers Cable and Unifor (Hogan)
(2015) – dismissal for consistent poor performance reviews culminating in driving under the influence UPHELD
• OFF DUTY CONDUCT:• DISMISSAL UPHELD – Saaskatoon Co-Operative
Association Ltd and UFCW, Local 1400 (Allen)(2015) for setting off firecracker near gas station where grievor worked, in addition to a disciplinary record
• DISMISSAL REJECTED: Toronto (City) and CUPE (Katsuras) (2015) – crashing municipal pool where grievor worked, while lapse in judgment, did not warrant dismissal given remorse and clean prior record
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False / Failed Allegations Extraordinary Damages
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Beware of the False Cause Courts awarding extraordinary
damages for false/egregious allegations
Turner v. Newfoundland and Labrador (Legal Aid Commission):– Summary dismissal based on false
allegations of incompetence after 22 years service
– $30,000 in moral / bad faith damages
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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
Failure to investigate can be HUGE factor in awarding damages – Silvera v. Olympia Jewellery
Vernon v. British Columbia 30 year employee accused of
bullying/harassment Investigators: 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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Recent Examples George v. Cowichan Tribes (2015): $35,000 in
aggravated damages for unproven allegations Tipple v. Canada (Attorney General)(2012): $1.3
million, including $250,000 for loss of reputation Pate Estate v. Galway Cavendish (2013): $550,000
punitive damages in connection to employer allegations that led to a criminal charge
Higginson v. Babine Forest Products (2013): cause allegations made up to avoid paying severance = $573,000 punitive damages
Gordon v. Altus (2015): invented cause allegations led to $100,000 in punitive damages
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Bottom LineInvestigate all allegations – false punitive/aggravated damages
Just cause: not impossible but his threshold
Off-duty conduct: new facts applied to old law
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Stuart E. [email protected]
Toronto: 416-640-6402York Region: 905-530-2484www.rudnermacdonald.com
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