Employment Law Issues (9:V): Difference between revisions

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Employment Law Issues (9:V) (view source)

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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.  
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:
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 ('''Lucas v 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 (''Waite v 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 v Fraser 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 (Clark v Capp (1905), 9 OLR 192). The employer must prove that:
*a) reasonable standards of behaviour and performance were set and clearly communicated to the employee;
*b) the employee was notified when he or she did not meet those standards;
*c) the employee received training and was allowed adequate time to meet those standards; and
*d) the possible repercussions of failing to meet those standards were clearly communicated.
 
Just cause for termination exists when an employee fails to respond to these measures. However, the ESB and courts require that the employer  prove that all these steps were taken.
 
There is also a requirement that the employee appreciate the significance of the warning (''Korber v Can West Imports Limited and Satten'', [1984] BCWLD 737).
 
See ''Hennessy v Excell Railing Systems Ltd.'' (2005 BCSC 734), for a comprehensive list of what an employer must show to establish poor performance.
 
Incompetence as grounds for dismissal needs to be considered in light of the ''Human Rights Code'' and the ''bona fide'' occupational requirement (“BFOR”) test (see ''British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union'' (BCGSEU), [1999] 3 SCR 3). In a case of poor employee performance, the Employment Standards Branch will not find just cause for dismissal unless the employer can demonstrate a “neglect of duties”.
 
==== c) Dishonesty ====
 
Dishonesty must be proven on a balance of probabilities and the burden rests with the employer (''Hanes v Wawanesa Insurance Company'', [1963]  SCR 154). The employer must show that the employee intentionally and deceitfully engaged in the misconduct. Failure by the employer to prove  dishonesty may lead to punitive damages. Dishonesty may be a cause for dismissal, especially if it indicates an untrustworthy character or is  seriously prejudicial to the employer’s interests or reputation (''Jewitt v Prism Resources'' (1981), 127 DLR (3d) 190 (BCCA)). In ''McKinley v BC Tel'', [2001] 2 SCR 161, the Supreme Court used a contextual approach. The test is whether the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship or is fundamentally or directly inconsistent with the employee’s  obligations to his or her employer. An effective balance must be struck between the severity of the misconduct and the sanction imposed.
 
==== d) Intoxication ====
 
Depending on the extent of intoxication and degree of prejudice to the employer, intoxication may be a cause for dismissal (Armstrong v Tyndall Quarry Co (1910), l6 WLR 111 (Man KB)). But, intoxication in  itself  is  not  grounds  for  dismissal.  The courts  look  at  all  relevant factors,  particularly work  record  through  previous years and whether the position is safety sensitive.  Courts may be  sympathetic to alcohol abusers especially if they are long-term employees (Robinson v Canadian Acceptance Corp Ltd (l974), 47 DLR (3d) 417 (NSCA)).


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