Employment Law Issues (9:V): Difference between revisions
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If the contract does not specify the conditions of dismissal, or if the contract or that specific provision is invalid, the worker may be able to claim all the wages that they would have earned for the remainder of the contract. (''Canadian Ice Machine v. Sinclair'', [1955] SCR 777). | If the contract does not specify the conditions of dismissal, or if the contract or that specific provision is invalid, the worker may be able to claim all the wages that they would have earned for the remainder of the contract. (''Canadian Ice Machine v. Sinclair'', [1955] SCR 777). | ||
After determining the damages the worker may be entitled to, return to Section IV. | After determining the damages the worker may be entitled to, return to [[{PAGENAME}}#1. Termination of Employment Checklist | Section IV.E.1: Termination of Employment Checklist]]. | ||
=== 5. Just Cause Dismissal === | === 5. Just Cause Dismissal === | ||
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Common law has defined just cause as conduct that is inconsistent with the fulfilment of the express or implied condition of service (''Denham v Patrick'' (1910), 20 OLR 347 (Div Ct)). It is conduct inconsistent with the continuation of the employment relationship, which constitutes a fundamental breach going to the root of the contract (''Stein v BC Housing Management Commission'' (1989), 65 BCLR (2d) 168 (SC), (1992), 65 BCLR (2d) 181 (CA)). This includes serious misconduct, habitual neglect of duty, incompetence, conduct incompatible with the employee’s duties or prejudicial to the employer’s business, or wilful disobedience to the employer’s orders in a matter of substance (''Port Arthur Shipbuilding CovArthurs et al'', [l969] SCR 85). | Common law has defined just cause as conduct that is inconsistent with the fulfilment of the express or implied condition of service (''Denham v Patrick'' (1910), 20 OLR 347 (Div Ct)). It is conduct inconsistent with the continuation of the employment relationship, which constitutes a fundamental breach going to the root of the contract (''Stein v BC Housing Management Commission'' (1989), 65 BCLR (2d) 168 (SC), (1992), 65 BCLR (2d) 181 (CA)). This includes serious misconduct, habitual neglect of duty, incompetence, conduct incompatible with the employee’s duties or prejudicial to the employer’s business, or wilful disobedience to the employer’s orders in a matter of substance (''Port Arthur Shipbuilding CovArthurs et al'', [l969] SCR 85). | ||
An | An objective test is used to determine whether there has been a serious misconduct or a fundamental breach. For a long term or senior employee, the employer may need more than mere misconduct (''Mallais v Lounsbury Co'' (l984) 58 NBR (2d) 345 (QB)). | ||
What constitutes just cause will vary from case to case and must be something that a reasonable person would be unable to overlook (''McIntyre v Hockin'', [1889] OJ No 36, l6 OAR 498 (Ont CA)). | |||
A single incident is usually insufficient to justify dismissal (''Buchanan v Continental Bank of Canada'' (1984), 58 NBR (2d) 333 (QB)), unless that act is extremely prejudicial to the employer such as dishonesty or immoral character that causes a failure of trust (''Stilwell v Audio Pictures Ltd'', [1955] OWN 793(CA)). | |||
The cumulative effect of minor instances may justify dismissal if they make the employee unable to perform his or her duties or result in a serious deterioration of the employment relationship (''Ross v Willards Chocolates Ltd'', [1927] 2 DLR 461 (Man KB)). | |||
Where an employer accepts a certain standard of performance over a period of time, the employer cannot without warning treat such conduct as cause for dismissal (''Dewitt v A&B Sound Ltd'' (1978), 85 DLR (3d) 604 (BCSC)). | |||
Courts are required to take a contextual approach to determining whether just cause for dismissal existed, taking into account numerous factors. See the Supreme Court of Canada case of ''McKinley v BC Tel'', [2001] 2 SCR 161. | |||
There is no comprehensive list of what constitutes just cause. The below list discusses some of the more common grounds for a just cause dismissal. | |||
==== a) Insubordination/Disobedience ==== | |||
Insubordination or insolence that is incompatible with the continuation of the employment relationship is just cause for dismissal (''Latta v Acme Cheese Co'' (1923), 25 OWN l95 (Ont SCAD)). A single incident that is very severe and interferes with and prejudices the safe and proper conduct of the business will be just cause for dismissal (''Stilwell v Audio Pictures Ltd'', [1955] OWN 793(CA)). Poor judgment, insensitivity, or resentment, is generally not sufficient (''Leblanc v United Maritime Fisherman Co-op'' (1984), 60 NBR (2d) 341 (QB)). | |||
An intentional and deliberate refusal of an employee to carry out lawful and reasonable orders will generally suffice as cause for dismissal. However, should an order be outside the employee’s job description, then such an order will not be considered “lawful and reasonable”. Frequent less serious instances of disobedience can justify dismissal where they are combined with other misconduct (''Markey v Port Weller Dry Docks Ltd'' (1974), 4 OR (2d) 12 (Co Ct); ''Stein v BC Housing'' (1989), 65 BCLR (2d) 168 (SC), (1992), 65 BCLR (2d) 181 (CA)). Generally, one isolated act of disobedience will not, in itself, be cause for dismissal. | |||
For a breach of company policy or company rules to constitute just cause for dismissal, the rule or policy must have been made clear to the employees and must have been regularly enforced by the employer. NOTE: A refusal to co-operate, a neglect of duties, or a refusal to perform the job may be just cause for dismissal (Lucasv Premier Motors Ltd, [l928] 4 DLR 526 (Alta CA)). However, if an employer proposes a unilateral change in position, job function, pay, hours, etc., it is not just cause if the employee refuses the change. Rather, it may be considered a constructive dismissal. Failure to accept a reasonable transfer not involving demotion or undue burden or hardship may be cause for dismissal, if such a transfer is determined to be an express or implied term of the contract.b)Poor Employee Performance Where there is actual incompetence, not just dissatisfaction with an employee’s work, the employee may be dismissed with cause if such incompetence is the fault of the employee (Waitev La Ronge Childcare Co-operative (l985), 40 Sask R 260 (QB)). If an employee presents an exaggerated assessment of his or her own skills, a company is justified in dismissing that employee after finding out his or her true abilities (Manners vFraser Surrey Docks Ltd (1981), 9 ACWS (2d) 155). Incompetence is assessed using an objective standard of performance, and it is for the employer to prove that the employee fell below the standard. Usually, one isolated example of failure to meet such a test does not warrant discharge (Clarkv Capp (1905), 9 OLR 192). The employer must prove that: | |||
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