The document summarizes a presentation on just cause for dismissal given at an HR conference. It discusses the types of dismissals, what constitutes just cause, contextual factors considered, off-duty conduct, performance issues, policy breaches, threats and violence. Examples of cases where dismissals were and were not found to be for just cause are provided. The importance of proper investigations and well-drafted employment agreements and termination clauses to avoid wrongful dismissal claims are emphasized.

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)
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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

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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”…”

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
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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

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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

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.
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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.
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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
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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

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Stuart E. Rudner
srudner@rudnermacdonald.com
647.255.3100
www.rudnermacdonald.com
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