Chapter 12 & 13 - Resignation and Retirement & Dismissal with Cause Flashcards
2 ways and employment relationship may come to an end:
1) Resignation
2) Retirement
Dismissal without just cause wherein an employer breaches its common law duty to provide reasonable notice of termination to an employee.
Wrongful dismissal
2 types of dismissal:
1) With cause
2) Without cause
Process rights that one party provides to another, such as an employer giving an employee an opportunity to respond to allegations against him or her.
Procedural fairness
TRUE OR FALSE: If an employer utters the words “I quit” or words to that effect, but does so while clearly distressed, the employer can consider it as resignation.
False - it cannot be considered as resignation
Has to be truly voluntary and not because the candidate has reached the age of 65.
Retirement
Where there is no misconduct and employer must give the employee advance notice or pay in lieu of notice, and the dismissal must not violate a statute.
Dismissal without cause
Replace the common law right of employers to terminate employees without “just cause,” simply by providing notice of termination.
Statutory unjust dismissal protections
Where employer can prove cause and is not required to give termination notice or pay.
Dismissal with cause
Burden of proving a case or the facts involved in a dispute.
Onus of proof
The principle, now rejected by the courts, that misconduct that falls short of establishing just cause may be used to reduce the amount of reasonable notice owing.
Near cause
3 basic principles of dismissal for cause:
1) Nature and extent of wrongdoing
2) Contextual approach
3) Proportionality
The principle that the sanction must fit the offence.
Proportionality
The increasing tendency of courts to view employee misconduct within the overall context of the employment relationship.
Contextual approach
Most common reason for dismissal but also most difficult under which to prove “cause”.
Poor performance
Grounds for off duty misconduct:
1) Harmed the employer’s business or reputation
2) Rendered the employee incapable of performing his or her duties satisfactorily
3) Lead to the refusal, reluctance, or inability of other employees to work with the employee
4) There was a serious breach of the Criminal Code
5) made it difficult for the employer to manage its
workforce.
2 general types of employee conduct that can justify dismissal without notice:
1) Misconduct
2) Problems related to job performance
One of the most serious acts of misconduct because it undermines the crucial element of trust that should exist between an employee and an employer.
Dishonesty
Something that tends to harm a person’s reputation.
Defamation
