CH 13

Question 1

What does a dismissal without just cause and without notice or pay in lieu expose the employer to?

Answer 1

A dismissal without just cause and with-out notice or pay in lieu exposes the employer to a lawsuit for “wrongful dismissal”

Question 2

What is just cause?

Answer 2

the essential legal question is whether an employee breached the employment contract in such a fundamental way that the employer is no longer bound by the common law obligation to provide reasonable notice of termination or pay in lieu of reasonable notice.

Question 3

What is the balance of probability?

Answer 3

the degree of proof
required in civil law cases wherein a proposition is established as fact if it is shown that the
proposition is more likely than not to be true

Question 4

Who has the onus of proof to show a balance of probability that the employee breached the employment contract fundamentally?

Answer 4

Employer

Question 5

What is proportionality?

Answer 5

the idea that any sanction must be proportional to the conduct to which it relates

Question 6

What is summary dismissal?

Answer 6

dismissal without notice, usually based on just cause, misconduct could have only occurred once but it goes to the heart of the employment contract.

Question 7

What are examples of acts that may warrant summary dismissal?

Answer 7

theft, assault, or a significant incident of sexual harassment

Question 8

What is the contextual approach?

Answer 8

the increasing tendency of courts to view employee misconduct within the overall context of the
employment relationship, including length of service and work and disciplinary record, in determining
whether the employer had just cause for dismissal

Question 9

How does the contextual approach work with determining just cause?

Answer 9

Using a contextual approach, courts now consider the nature and seriousness of an alleged offence in the context of the overall employment relationship

Question 10

what is procedural fairness?

Answer 10

certain process rights that one party provides to another, such as an employer giving an employee an opportunity to respond to allegations against them

Question 11

What four steps should the employer ensure are considered that
the sanction is proportionate to the misconduct within the overall context of the employment relationship?

Answer 11

1. consider whether the misconduct was planned and deliberate or a momen-tary error in judgment;
2. assess the misconduct in the context of the employee’s position, length of ser-vice, performance record, and previous conduct;
3. consider extenuating circumstances, such as provocation, mistreatment, or external circumstances such as a serious illness in the family, that may have prompted the incident; and
4. consider the employee’s response to the allegations, such as admission, remorse, denial, or further challenge. For example, if the employee denies that their actions constitute misconduct, there is less chance that their behav-iour will change.

Question 12

What important knowledge comes from the Obeng v. Canada Safeway case?

Answer 12

The case of Obeng v Canada Safeway Limited underscores the importance of how an employee responds to allegations of wrongdoing during an investigation. The employee in this case lied during the investigation.

Question 13

Can an employer change their grounds for just cause after they are countersued based on further investigation?

Answer 13

Yes

Question 14

What does without prejudice mean?

Answer 14

without an admission of wrongdoing in a legal dispute

Question 15

When would you need to write without prejudice?

Answer 15

an employer dismisses an employee for cause but still wants to provide
without prejudice without an admission of wrongdoing in a legal dispute
them with some money as a gesture of goodwill. In this situation the employer should clarify in writing that the payment is made on a without prejudice basis—that is, the payment does not imply that the employer owes the employee reasonable notice of termination.

Question 16

What is condonation?

Answer 16

implied acceptance by
one party of the conduct of another party; once an employer is aware of an employee’s misconduct and takes no disciplinary
action within a reasonable time, the employer cannot dismiss the employee for that misconduct without any new misconduct

Question 17

There are 11 commonly recognized principles pertaining to dismissal for just cause. A useful summary of these principles appears in the 1995 BC Supreme Court case of Graham v Canadian Cancer Society at para 39 (citations omitted): What are they?

Answer 17

1. The employee is entitled to be made aware of the responsibilities and restrictions imposed on him or her by the employer.
2. The employee is entitled to be advised of the employer’s dissatisfaction and notified that his position is in jeopardy.
3. Cumulative causes may justify dismissal without notice where the events taken individually would not.
4. But mere inadequacies and errors of judgment ought not to be so put together.
5. Positions requiring a higher degree of public confidence may impose a higher standard of duty.
6. Abuse of authority and misuse of credit cards may justify dismissal.
7. Wilful disobedience may justify dismissal without notice but the onus is on the defendant to establish that the acts were in defiance of clear and unequivocal instructions or were known to be contrary to the employer’s objectives. The question is whether the act disregarded essential or fundamental terms of the contract of service.
8. The defendant may rely on grounds only known to it after dismissal, but not conduct after dismissal.
9. Conflict of interest that would cause an employer to lose trust may be a cause for dismissal.
10. The employer is entitled to set any guidelines it wishes provided the same are not contrary to law, dishonest or dangerous.
11. An employee may be terminated for cause while on sick leave.

Question 18

What are the two general types of employee conduct that can justify dismissal without notice?

Answer 18

There are two general types of employee conduct that can justify dismissal without notice: misconduct, such as acts of theft or insubordination, and problems related to job performance.

Question 19

What are examples of dishonesty?

Answer 19

fraud, such as submitting inaccurate claims for overtime pay or sick leave benefits, accepting kickbacks from suppliers, or stealing company property

Question 20

When would dishonest conduct warrant dismissal without notice?

Answer 20

If it violated an essential condition of the employment contract, breached the bond of trust between the parties or was fundamentally or directly inconsistent with an employees obligations to an employer.

Question 21

What are mitigating factors of discharge in cases of dishonesty?

Answer 21

1. a lengthy period of satisfactory employment2. a discipline-free history such that the employee’s mis-conduct can be considered an isolated event;
2. the dishonest conduct was undertaken in the spur of the moment without premeditation;
3. any reasonable confusion as to whether the employee knew what they were doing was wrong;
4. the prompt and honest acknowledgement of the mis-conduct at the earliest reasonable opportunity;
5. the economic impact of the discharge given the employ-ee’s personal circumstances;
6. genuine remorse by the employee and apologies at the earliest reasonable opportunity;
7. the nominal value of the stolen property;
8. the employee is unlikely to engage in any future mis-conduct; and
9. uneven application of discipline by the employer for cases of theft and dishonesty

Question 22

What are some aggravating factors of discharge in cases of dishonesty?

Answer 22

1. a disciplinary record, especially where there is previous discipline for matters relating to dishonesty;
2. the employee was in a position of trust and responsibility;
3. the dishonest conduct was planned and premeditated;
4. the failure to acknowledge the misconduct at the earliest reasonable opportunity;
5. continued dishonesty throughout the investigation with attempts to cover up the misconduct; and
6. a lack of genuine remorse.

Question 23

In dealing with instances of employee dishonesty, an employer can put itself in the strongest legal position possible by using what three strategies?

Answer 23

1. Provide clear written policies that outline required behaviour. Key policies should state that violations will be cause for dismissal. To be effective, the policies must also be clearly communicated to employees and consistently enforced.
2. Get the facts. An employer must ensure that it has its facts right. Not only is there arguably a higher standard of proof required in cases where dishonesty is alleged, but the employer may also be required to pay additional compensation to an employee if it makes harmful accusations without sufficient evidence to support them. Employers should investigate incidents thoroughly—obtaining witness statements and listening to an employee’s explanation—before deciding whether or not to dismiss the employee for dishonesty. If the employee has a reasonable explanation for their actions, such as taking computer equipment home to finish a report on the weekend, a court will probably not find that the employer had just cause for dismissing the employee. Proving that an employee committed fraud or was dishonest requires convincing evidence.
3. When allegations cannot be proven, provide a reasonable separation pack-age. If the employer cannot prove that the employee committed the dishon-est act but no longer wishes to retain the employee’s services, it should dismiss the employee “without cause” and provide a reasonable separation package. This will protect the employer against additional damages that it could be required to pay to an employee if it makes unsubstantiated allegations of dishonesty in a wrongful dismissal suit

Question 24

What are examples of insolence or insubordination that could cause just cause for termination? (single act)

Answer 24

assault on a supervisor or a deliberate contravention of an important employment policy that results in a significant loss for an employer.

Question 25

In the Henry v. Foxco case what did the court state the principle of proportionality? (H v. F body repair technician vans, yelled fire me)

Answer 25

1. the employee and supervisor could no longer maintain a working relationship;
2. the incident undermined the supervisor’s credibility in the workplace; and
3. as a result of the incident, the employer suffered a material financial loss or loss of reputation, or its business interests were seriously prejudiced.

Question 26

When can off-duty conduct provide just cause for termination?

Answer 26

If an employer can demonstrate that an employee’s off-duty conduct harmed its business or reputation.

Question 27

What are some defining points to address in a blogging policy?

Answer 27

The employer’s general code of conduct applies to employee blogs, even if the employee posts under a pseudonym.
* Any confidentiality or non-disclosure obligations to the employer apply to the Internet in general and spe-cifically to blogs, tweets, and social networking sites.
* The posting of defamatory or derogatory comments about fellow employees, customers, or management is expressly prohibited. Author anonymity, use of aliases, or omitting the names of people or organiz-ations does not change this requirement.
* Bloggers who identify themselves as employees or who discuss substantive work issues in the blog should include a disclaimer stating that the opinions expressed are those of the author only (Pigott, 2005).
* Employees must use their own equipment and time for personal blogging purposes.
* Published materials that are damaging to the employ-er’s business or reputation are expressly prohibited.
* Failure to follow the policy will, depending on the circumstances, result in disciplinary measures up to and including dismissal (Pushor Mitchell LLP, 2006).

Question 28

What are the two types of absenteeism under the common law?

Answer 28

culpable (blameworthy) and innocent (blameless)

Question 29

What is culpable absenteeism?

Answer 29

blameworthy absences,
such as being late without good reason (including returning late from a break), leaving work without permission, or
failing to follow absence notification procedures

Question 30

What should an employer consider when deciding if ongoing lateness or absenteeism constitutes just cause for dismissal?

Answer 30

1. how long the employee has worked for the employer; 2. whether the lateness or absenteeism started suddenly or has been chronic since employment began;
2. how frequently the employee is late or absent;
3. what reasons the employee gives for their lateness or absences;
4. whether the lateness or absenteeism harms the employer; and
5. whether the employer consistently enforces its attendance policy—for example, if it tolerates the repeated lateness of other employees, the employer has little chance of justifying the dismissal of a particular employee on this basis

Question 31

What is innocent absenteeism?

Answer 31

absences that arise as a result of a legitimate medical or other cause; innocently absent employees can never be subject to disciplinary measures

Question 32

In determining an appropriate response to an employee who is intoxicated during work hours, an employer should consider what following factor?

Answer 32

1. Did the intoxication harm its business interests?
2. How has it treated intoxicated employees in the past?
3. Does the employee work in a safety-sensitive area? If so, did the intoxication endanger the employee or others?
4. Was the employee’s performance affected by the intoxication?
5. Is there a company policy or a term in an employment contract that addresses intoxication during work hours?

Question 33

What must an employer prove to dismiss someone on the grounds of incompetence?

Answer 33

An employer must show that an employee has fallen below an objectively determined level of performance and that the problem lies with the employee, not with other factors, such as lack of adequate training.

Question 34

What is the basis (10 points) for establishing just cause for a dismissal of incompetence?

Answer 34

1. Each case must be decided on its facts.
2. An employer’s displeasure at an employee’s performance is not enough to warrant dismissal. There must be some serious misconduct or sub-stantial incompetence.
3. The onus of proving just cause rests with the employer and the stan-dard of proof is beyond a balance of probabilities.
4. The performance of an employee … must be gauged against an object-ive standard.
5. The employer must establish: (a) the level of the job performance required, (b) that the standard was communicated to the employee, (c) that suitable instruction and/or supervision was given to enable the employee to meet the standard,
   (d) the employee was incapable of meeting the standard, and (e) the employee was warned that failure to meet the standard would result in dismissal.
6. Where the employee’s performance is grossly deficient and the likeli-hood of discharge should be obvious to the employee, warnings and reasonable notice are not required.
7. While the standard of incompetence to warrant discharge for cause is severe, the threshold of incompetence necessary to warrant dismissal for cause is significantly lower where dismissal is preceded by many warnings indicating unsatisfactory performance.
8. In considering whether an employer has provided adequate warning to an employee, where the dismissal is for repeated instances of inad-equate work performance, the employer must show: (a) it has established a reasonable objective standard of performance, (b) the employee has failed to meet those standards, (c) the employee has had warnings that he or she has failed to meet those standards and the employee’s position will be in jeopardy if he or she continues to fail to meet them; and
   (d) the employee has been given reasonable time to correct the situation.
9. An employer who has condoned an inadequate level of performance by his employee may not later rely on any condoned behaviour as a ground for dismissal.
10. Condoned behaviour is relevant if the employee fails to respond after appropriate warnings. Condonation is always subject to the implied condition that the employee will be of good behaviour and will attempt to improve.

Question 35

What other on the job conduct can fall under the scope of incompetence? Ex.?

Answer 35

A lack or requisite tact, discretion and sensitivity for the particular demands of the position. Lowery v Calgary 2000 Paramedic that made inappropriate comments to patients “previous patients who have suffered similar injuries have rarely lived” and referred to a patient as being
“very combative and missing half his face.”

Question 36

What happens if an employer dismisses an employee for asserting their rights under employment-related statutes and regulations?

Answer 36

A court or tribunal may order the employer to reinstate the employee and pay the employee a monetary award.