Ch 13&14 Flashcards
What are examples of just cause?
serious absenteeism, consistent lateness, open disobedience, habitual negligence.
When can an er dismiss an ee?
Without cause - anytime with reasonable notice except when it violates HR legislation.
With cause - no notice required.
What is reasonable notice according to Employment Standards Act?
After 3 mo, min. set out in the act. i.e.. 1 yr - 2 wks, 3yrs - 3wks. No max.
What is reasonable notice in the explicit terms of the employment contract?
Min ESA, usually longer, but can’t be less.
What are the implied terms of notice in an employment contract?
Common Law - 1-2 wks to 1 mo for every year of service. Based on employability factors (ie. age, length of service, skills, etc.)
Wrongful dismissal is a
a. tort
b. equitable wrong
c. breach of contract
d. statutory wrong
c. breach of contract
In a suit brought against an er, what must the ee do?
Midigate losses by proving he’s been looking for work.
(DF) Constructive dismissal
When employment contract is breached b/c job changes or conditions become intolerable.
When can an ee leave without notice?
When made to work in dangerous conditions that involve immoral/illegal activities.
Does a lay-off exempt an er from reasonable notice?
no
What damages are ees entitled to?
Pay, benefits, pension rights. Rarely punitive damages, damages for defamation, damages within the “reasonable expectations of the parties”(mental distress)
Other than litigation, what recourse does an ee have when he believes he’s been wrongfully dismissed?
HR Tribunal, complain under ESA.
Who can make orders about the ESA under s.79?
The Director of ESA
What must be included in an er’s termination notice?
- be in writing
- er’s address
- correct notice period or longer
- must be delivered in person, by mail, by email or by fax.
If a business is sold and ees stay on with new er, what rights to the ees retain?
All statutory rights
Length of service
What is a temporary layoff
Ceasing of work with intent to recall when an ee receives less than half his regular pay. after a 60 day layoff the ee is no longer employed, unless otherwise contracted for longer.
Notice of termination is not required for ees who are temporarily laidoff if:
- seasonal industry where it’s the practice to hire and layoff every year.
- notified when hired.
- laid off as a result of normal seasonal reduction/business closure.
When an er provides notice rather than pay in lieu of notice, what must the er do?
- not change is wage rate
- not change any other term in the employment contract
- pay regular (or avg. of past) wages.
What is mass termination?
Termination of 50 or more ees within 2 months.
What is just cause for termination?
When the ee breaches the employment contract in such a fundamental way the er is not bound by it.
Who has the burden of proof to establish that the ee breached the employment contract?
the ER.
If the er is alleging criminal misconduct, what is the standard of proof?
Higher than balance of probabilities > Beyond a reasonable doubt.
What are the steps in procedural fairness?
- investigate in good faith, thoroughly, promptly, and in confidence.
- allow ee the full opportunity to respond to gather more evidence, demonstrate if ee wrongly accused, avoid wrongful dismissal.
- consider the misconduct; planned, remorse, context,
- look at the misconduct in the context of overall employment relationship.
Can an er use just cause after it’s dismissed an ee without cause?
yes. Ers can use after-aquired info, and can change the grounds for dismissal.
What is condonation?
When an er discovers misconduct or poor performance and doesn’t respond in a reasonable time. The misconduct can’t then be used as just cause for dismissal.
What approach is applied to dismissal for dishonesty
Contextual approach - dismissal must be proportional to the conduct.
Can a single act of insubordination constitute just cause?
Yes, but rare. Usually must show pattern.
What must an er show to prove just cause of termination if the er’s misconduct occurred while off duty?
That the misconduct could harm the reputation of the business.
What are the grounds that cannot constitute just cause?
Any legislated acts, Codes, regulations.
Is alcohol abuse grounds for immediate dismissal?
No. Provided they are not working in a safety sensitive area.
Who can be terminated immediately (i.e.. without progressive discipline) for sexual harassment?
Any senior level employee.
