HRPA Annual Conference & Trade ShowJanuary 24, 2014

Toronto

Presented by

Stuart E. Rudner

Just Cause: Not Necessarily a Lost Cause

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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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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”

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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

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.

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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?

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• 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”

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HarassmentPost 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?”

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Performance Issues

Employer must:Set a clear, reasonable standardCommunicate expectationsMeasure the performanceTake appropriate action

– Warnings (verbal and written) – document everything!

– Counseling– Training

Allow reasonable time for improvement

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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;

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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.

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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)

Implementing PoliciesA. Have a policyB. Use clear and unambiguous languageC. Keep the policy up to dateD. Publicize the policyE. Make employees aware of concernsF. Ensure supervisors and managers are

aware of the policy and how to monitorG. Monitor behaviourH. Discipline violators

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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”…”

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“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

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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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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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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

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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

Vernon v. British Columbia 30 year employee accused of

bullying/harassment Known as “The Little General” Offensive language, racial and other

inappropriate comments

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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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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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Common Law: The Length of Notice

Requirement: “reasonable” notice of dismissal

The Bardal Factors 1) Length of service2) Age3) Position / Character of Employment4) Availability of Similar Employment

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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

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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 and25

26 and30

31 and35

36 and40

Years of Service

Months/Year of Service

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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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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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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.

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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.

Employment Agreements

Use them!

Do it properly– Before there’s already an agreement– With consideration– Explained and understood– Independent legal advice

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Termination Clauses

Avoid uncertainty of “reasonable notice” & reduce dismissal costs

Use clear language Don’t go below employment

standards Address benefits Address mitigation

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

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

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Stuart E. Rudner

srudner@rudnermacdonald.com

647.255.3100www.rudnermacdonald.com

Twitter: @CanadianHRLawLinkedIn: Connect with me, join the Canadian HR Law Group and visit the

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