Employment Law Issues (9:V): Difference between revisions
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==== d) Intoxication ==== | ==== 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 | 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)). | ||
Consider whether the intoxication is part of a larger substance abuse issue. If so, the employee may have a Human Rights claim (see [[Governing Legislation and Resources for Human Rights (6:I) | Chapter 6: Human Rights]] and the duty to accommodate). | |||
==== e) Absences and Lateness ==== | |||
When an employee is frequently absent from work, the absence occurs at a critical time, or the employee lies about the absence, it may be a cause for dismissal. Chronic lateness may also be cause for dismissal. | |||
Consider whether the lateness or absenteeism are caused by a physical or mental disability. If so, the employee may have a claim at the B.C. Human Rights Tribunal (see [[Governing Legislation and Resources for Human Rights (6:I) | Chapter 6: Human Rights]]). | |||
==== f) Illness ==== | |||
Temporary illness does not constitute just cause ('''McDougal v Van Allen Co Ltd.''' (1909), 19 OLR 351 (HC)). For a lengthy illness, one must consider the nature of the services to be performed, the intended length of service of the employee, and other factors (''Yeager v RJ Hastings Agencies Ltd'' (l985), 5 CCEL 266 (BCSC)). In some cases, a period of one year may not be too long for an employer to await the return of a valuable employee (''Wilmot v Ulnooweg Development Group Inc'', 2007 NSCA 49). If the employee is permanently incapable of performing work duties, he or she may properly be dismissed (''Ontario Nurse’s Federation v Mount Sinai Hospital'', [2005] OJ No 1739). Illness is usually considered frustration of contract, and is not grounds for dismissal for just cause; however, if the contract is frustrated, the employee is not entitled to severance pay. | |||
Consider whether the illness is actually a physical or mental disability. If so, the employee may have a claim at the B.C. Human Rights Tribunal (see [[Governing Legislation and Resources for Human Rights (6:I) | Chapter 6: Human Rights]]). | |||
==== g) Conflict of Interest ==== | |||
An employee has a duty to be faithful and honest. Information obtained in the course of employment may not be used for their own purposes or purposes that are contrary to the interests of the employer (''Bee Chemical Co v Plastic Paint and Finish Specialists Ltd et al'' (l979), 47 CPR (2d) 133 (Ont CA)). An employee may be liable for damages for breach of contract where he or she is running a business contemporaneous with being an employee (''Edwards v Lawson Paper'' (1984), 5 CCEL 99). An employee’s conduct that is seriously incompatible with their duties and creates a conflict of interest can be grounds for summary dismissal (see ''Durand v Quaker Oats Co of Canada'' (1990), 45 BCLR (2d) 354 (CA). Following the end of employment, an employee is not permitted to compete unfairly against the employer, for example by using confidential information. | |||
==== h) Off-Duty Conduct ==== | |||
Private conduct will be considered just cause for dismissal if it is incompatible with the proper discharge of the employee’s duties, or is prejudicial to the employer. This depends on the conduct and the nature of the job. Alleged criminal conduct or conduct that interferes with the internal harmony of the workplace, if it is prejudicial to the employer, may also be just cause. | |||
==== i) Personality Conflict ==== | |||
A personality conflict, i.e. inability of an employee to function smoothly in the work environment on a personal level, is not grounds for dismissal unless it is inconsistent with the proper discharge of the employee’s duties or is prejudicial to the employer’s interests (''Abbott v GM Gest Ltd'', [l944] OWN 729). If the inability to get along with others results in business interference, the employee may be dismissed (''Fonceca v McDonnell Douglas Ltd'' (l983), l CCEL 51 (Ont HC)). | |||
=== 6. Defences to Just Cause Arguments === | |||
If an employer alleges just cause to dismiss, the employee will often present one of the following defences to the just cause allegations. | |||
==== a) No Warning ==== | |||
It can be argued that an employer must warn an employee before firing that employee for a series of trivial incidents that are not serious enough alone to justify dismissal (''Fonceca v McDonnell Douglas'' (l983), l CCEL 51 (Ont HC)). | |||
==== b) Condonation ==== | |||
If an employer’s behaviour indicates that they are overlooking conduct which gives cause, that employer cannot later dismiss the employee without new cause arising (''McIntyre v Hockin'' (1889), l6 OAR 498 (CA)). This applies only where the employer knows of the conduct. The employer is entitled to reasonable time to decide whether to take action, and this reasonable time period commences at the time that the employer learns of the employee’s conduct. | |||
Behaviour by the employer constituting condonation may include actions or omissions such as failing to dismiss the employee within a reasonable time (''Benson v. Lynes United Services Ltd'', [1979] AJ No 724), tolerating an employee’s behaviour without reprimand (''Johnston v General Tire Canada Ltd'', [1985] OJ No 98), giving the employee a raise (''SS v. Port Alberni Friendship Center'', [2000] BCJ No 608), or giving the employee a promotion (''Miller v Wackenhut of Canada Ltd'', [1989] OJ No 1993). | |||
If an employer learns of an employee’s misconduct after dismissing the employee, the employer may use that misconduct to justify the dismissal for cause. However, if the employer already knew of the employee’s misconduct, but terminated the employee without alleging cause or gave the employee a letter of reference, in some cases the employer has been held to be estopped from alleging cause or has been taken to have condoned the employee’s misconduct. However, there is conflicting case law on this subject and many cases have held that the employer may still allege cause. | |||
According to some case law, past misconduct that has been condoned may be revived by new instances of misconduct, and the employer may then use the cumulative effect of the past and the new misconduct to justify dismissal. However, this is an area with conflicting case law. If the employer has warned the employee about the past misconduct, there would not be an issue regarding the revival of the past misconduct, as it would not have been condoned in the first place; the cumulative effect of the misconduct could then be used to justify dismissal. | |||
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