Date post: | 17-Dec-2014 |
Category: |
Law |
Upload: | rudnermacdonaldllp |
View: | 49 times |
Download: | 5 times |
HRPA Annual Conference & Trade ShowJanuary 24, 2014
Toronto
Presented by
Stuart E. Rudner
Just Cause: Not Necessarily a Lost Cause
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
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
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
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
• 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
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?”
9
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
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;
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.
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)
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
14
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
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
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
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
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
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
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
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
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 and25
26 and30
31 and35
36 and40
Years of Service
Months/Year of Service
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
27
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.
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.
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
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
34
Stuart E. Rudner
647.255.3100www.rudnermacdonald.com
Twitter: @CanadianHRLawLinkedIn: Connect with me, join the Canadian HR Law Group and visit the
Rudner MacDonald PageBlog: Canadian HR Law
http://www.hrreporter.com/blog/canadian-hr-law
FaceBook: Rudner MacDonald PageGoogle+: Canadian HR Law, Rudner
MacDonald PageYouTube: Rudner MacDonald channel