Module 6.4-6.7 Flashcards
Dismissal without caus applies to
non labour nonunionized employees
IF THE EMPLOYEE IS FIRED FOR JUST CAUSE………….
THEN NOT ENTITLED TO NOTICE OF TERMINATION!!!
according to common law an employer may terminate an employment contract for just cause wihtout giing notice!!!!!!
dismisaal without cause requrie what?
advance notice
an indefintie contract of employment may be terminated by an employer for any reason as long as reasonable notice is given!!!
employer can either a) reqirue employee to continue working for the notice period OR b) give employee pay in lieu of wokring notice
What is the appropriate perido of notice for employee
a) terms of employment contract
b) employments tandards code
c) common law!
common law period of reaosnable notice is typically much longer than stat minimum!
hwo do we deermine if reasonable notice was given in dismissal without caus case?
- review employment contract to see any express ters
b) ESC minimum period of termination notice
c) common law to identify potential period of reasonable notice of termination
section 4 of ESC says you CANNOT PURPORT THE MINIMUM NOTICE AS PER THE STATUTORY DETAILS
iF THERE is no contract or the contract is silent on notice period
then the employer needs to consider BOTh statuatory minimum and reasonable common law period
termination of employment is dealt with in divison 8 of employment standards code
notice of termination has to be PROVIDED IN WRITING & EARNINGS CANNOT CHANGE DURING THE TIME WHEN NOTICE IS GIVEN AND THE TERMINATION HAPPENS
cant alter matierla terms of contract
secton 55.2 when are employers not required to give advance notice
- just cause
- employed <90 days
- fixed term cotnract <12 mos
- strike
- contract of employ is frustrated
- season employees
AND LOOK AT CODE FOR MORE EXCPETIONS
in absence of contractual language to the contrary provding employee with min standards code notice will not satisfy employers common law obligaiton in most instances
incumbent on empoyer to find what constitues reasonable notic ein common law
How is reasonable notice at common law determined?
BARDALL FACTORS
CASE BY CASE BASIS: REGARD CHARACTER OF EMPLOYMENT, LENGTH OF SERVICE, AGE OF EMPLYMENT, AVAILABILTIY OF SIMILAR EMPLOYMENTE ETC.
–BARDALL FACTORS–
1. Characterisitcs of employment: character, length of service, salary, history w employer, seniority
2. Emplyee characterissicts: age of employee, experience and skill set, health
3. outside factors: job market and avialability of reasonable alt employment
NO BARDALL FACTOR IS DETERMINATIVE!! NO RULES OF THUMB!!
one month per year rul of thumb is EXPRESSLY REJECTED BY CANADIAN COURTS
REVIEW THE MANY FACTORS TO SEE WHAT CONSTITURES REASONABLE COMMON LAW PERIOD OF NOTICE
12:38 https://d2l.ucalgary.ca/d2l/le/content/619780/viewContent/6544800/View
Bardall factor: nature of position
Employees in higher level roles, OR HIGHLY SKILLED are entitles to longer periods of advance notice!
REMEMBER ONE FACTOR IS NOT DETERMINITIVE!
Bardall factor: length of service
Often seen as dominating factor but courts establish that this is not the most important or the only factor
longer the service longer the period of notice
but one factor IS NOT DETERMINITIVE
NO ABSOLUTE UPPER LIMIT OR CAP ON REASONABLE NOTICE BUT SOFT CAP IS 24 MOS
Bardall factor: age of employee
older employees, those over 50 are entiteld to longer period of notice!!! this factors importance are going down thouggh
still a material factor
NOT DETERMINTIVE!
Bardall factor: availability of similar employment
where an employee is discharged from aunique job based on employees straining and qualification COURTS REOCGNIZE THEY MAY HAVE AHARD TIME FINDING EMPLYOMENT SO THEY NEED LONGER PERIOD
very fact specific analysis
NOT DETERMINITIVE
BARDALL FACTOR: relocated or recrutied employees
any employees that relocate at the request of aneemploye rneed a logner period of reasonable notice!!!! not withistanding shorter periods of service
not determinitive
termination package
when dismissing an employee without cause, the employer must first consider:
- is it desirable to have the employee work till the end of the period [“working notice”]
- OR is it prefereable to have the emploeye leave immediately [“lump sum + + reasonable notice obligation”]/[“Regualrly pay the employees salarya dn benefits during period of notice while not requiring them to attend and work”]
“lump sum + + reasonable notice obligation”] downside
if you get a job in the noticce period, employer has overpaid
[“Regualrly pay the employees salarya dn benefits during period of notice while not requiring them to attend and work”] nuance
employer can expressly state that if the employee finds employment during notice period these salary continuation payments will end
employers are required to pay out ALL benefits during notice period as if they were working as normal
bonus, commision, stokcc, access to car/etc.
if they recieved any of these benefits, these should be considered as part of termiantion package
EMPLOYERS CAN NOT WITHOLD ESC MINIMUM IN EXCHANGE FOR RELEASE AGAINST WRONGFUL DISMISSAL SUIT, BUT CAN DO SO FOR COMMON LAW ENTITLEMENT
TERMINATION FOR CAUSE S552A employee not entitled to notice if fired for just cause
just cause: misconduct inconsistent with the fulfilment of the express or implied conditions
is establishing just cause an easy standard to meet?
nO, employer has the onus of proving cause on balance of probabiilities!!!!!!!
test for dismissal for cause
court must determine whetehr the cause gives rise to a breakdown of the employment relationship
ASSESMMENT OF CAUSE IS OBJECTIVE, CONTEXTUAL, AND PROPORTIONATE
cause is a question of fact that varies with the nature of the employers business and the emloyees position of responsibility and trust
just cause can be a big act, or smaller instance of misconduct that snowball over time (after given appropriate warnings)
3 steps in seeing if employee disconduct warrants a dismissal
- determine the nature and extent of the alleged misconduct: WHAT HAPPENED, WHAT DID EMPLY DO, HOW IS EMPLOYERS BUSINESS AFFECTED BY THE HARM
- consider surrounding circumstances AND OCNTEXT! THE BIG PICTURE (employment history, employee role/responsibility etc.): IS THE SUMMARY DISMISSAL A PROPORTIONE RESPONSE TO THE MISCONDUCT!
- detemine if the response to misconduct is balanced having regard to the facts: IS THE MISCONDUCT SO INCOMPATIBLE WITH THE TERMS OF THE EMPLOYMENT RELATIONSHIP THAT IT WARRANTS EMPLOYEE DISMISSAL
- employees record of good conduct should be considered (is his out of character?)
degree of misconduct required to justify dismissal is greater in the case of seniro employyes/long term employees
Law acknowledges taht accumulatiomn of minor misconducts can also be incompatiable with employment relationship!!
high elvel test: is the cumulative effect of minor misconduct created a fundamental breakdown in the relaitonship of both parties-> IF YES: cause is established
BUT IF: WARNINGS ARE NOT GIVEN AND NOT GIVEN THE OPPORTUNITY TO CORRECT ACTIONS, THEN THESE DONT CONSTITUTE CUMULATIVE EFFECTS!
cumualtive events and progressive discipline
CONDONATION: if employer creates lax working atmosphere, then employer cant fire employees for being lax
IF YOU CONDONE MISCONDUCT CANNOT LATER RELY ON THE SAME MISCONDUCT TO JUSTIFY DISMISSAL
employee bears the onus of proving condonation
-> warnings and progressive discipline steps are evidence that there has been no condonation!!!!!!
KEY: FAIRNESS AND CONSISTENCY
categories of conduct to justify dismissal: incompetence
employee continually underperofrms
not just being dissatisfied with their work, but consistent poor performance against standards
NEEDS TO BE FAIR!
Typically one action of incompetence is not enough, and there needs to be consistent small acts of incompeence!!
notes:
-need warnings and opportunity to improve
- single incodient of incompetence can justify dismissal in exceptional CIRCUMSTANCES
- If employee lies about havign certain skills they can be fired
categories of conduct to justify dismissal: dishonesty
test
fishonesty does not auto lead to dismissal, but only constitues just cause when leads to relationship breakdown; violates condition of emloyment; runs against employees position of trust
test: is there evidence of dishonest conduct on balance of probabiltieis, is the dishonesty severe enough to warrant dismissal?
PUNISHMENT NEEDS TO FIT THE CRIME!!!
dishonesty during investigation may tip scales
categories of conduct to justify dismissal: insolence and insubordination
violates duty to obey
SERIOUS/willful disobeince constitues repudiation of the employment contract!!! justifies termination without notice
a single incident that destorys harmoinus relationship or which seriously undermines managemtns authrity will justify immediate dismissal
less serious episodes warrant warning and immediate progressive discipline
categories of conduct to justify dismissal: off duty conduct
if conduct interferes with employees ability to perform duties or results in serious harm to employers interst or reputation
serious MISCONDUCT by persons in position of trust will justify dismissal without notice in cerrtain cases
categories of conduct to justify dismissal: personality condlict
a conflient that truly disrupts employees ability to maintain harmonious workplace then may consittue for just cause
note: progressive discipline is needed, warnings needed
note: if employeees attitude is cuz of employers actions then this diminishes jsutification for dismissal without notice
categories of conduct to justify dismissal: absenteeism and lateness
chronic lateness or persistent prologned absensec from work- but courts recommend warnings and progressive discipline
employees who take time off for medical or personal reasons does not consitute just cause
categories of conduct to justify dismissal: sexual harassment
fundamental breach of employment contract
if misconduct is inexcusable, may make a wraning inapproiritae; employer needs to undertake fullsome contextual analysis
but there is important to analyze culture of work environemnt
categories of conduct to justify dismissal: drugs alcohol and intoxication
working under the influence can constitue summary dismissal
if the employee is suffering from alcohoolism or drug addiciton, employer cant terminate contract unless frustrated
if employee has had a long history of succesful employment, but is recently affected by diseases of alcool or durg, AND has not been able to go through a rehab rogram, dismissal not jsutifed
AS LONG AS EMPLOYEE IS ABLE TO COMPLETE WORK IF EMPLOYEE IS DISCRIMIANTED DUE TO THEIR ADDICTION: HUMAN RIGHTS COMPLAINT
EMPLOYEES cannot dismissed for asseting protected rights
section 10,1,a of AB human rights act: no person shall ertaioate because they use right
more AB legislation with similar provisions:
- employment standards code
ohsa
wca
labour relations code
breach of contract= wringful dismissal
3 types of damages
reasonable notice damages
aggravated damages
punitive damages
reasonable notice damages
limitation period= 2 year discoverability period
employees have 2 years from disimissal date to sure for wrongful dismissal
section 3.1.a from limitation act
WRONGFULL DISMISSAL : “dismissal without cause where there has not been reasonably notice or pay in lieu of notice”
-employee has a right to be provided reasonable notice of dismissal- THIS IS AN IMPLIED TERM OF EVERY CONTRACT of EMPLOYMENT (unless expressly stated otherwise)
2 common scenarios of wrongful dismissal
- indsufficient notice or pay in lieu: not enough notice or pay in lieu provided- FAILURE TO MEET CONTRACTUAL OBLIGATION SO THERE IS AN ACTION FOR DAMAGES!
- unjustified dismissal for cause: employer fails to justify the cause of dissmissal adequately, the employee is now entitled to damages
UNLESS AN EMPLOYER EXPRESSLY CONTRACTS OUT OF COMMON LAW!!! THE MIN STANADRARDS +COMMON LAW APPLY
tHIS IS PURSUANT TO SECTION 3
EMPLOYER NEEDS TO EXPLICITY SAY:
1. you are only entiteld to minimums under employment standards porvisions
2. you dont get anything more UNDER COMMON LAW!!1
this is a good holistic expmple:
Additionally, your employment may be terminated at any time without cause upon the provision by FTIC of the minimum notice of termination, or pay in
lieu of notice, benefits and, if applicable, severance pay prescribed by applicable employment standards legislation in the province in which you are
employed. The provision of such notice or pay in lieu of notice, benefits and severance pay constitutes full and final satisfaction of all rights or entitlements
which you may have arising from or related to the termination of your employment (including notice, pay in lieu of notice, severance pay, etc.), whether
pursuant to contract, common law, statute or otherwise.
the more senior you are the more managers you are the more ksilled you are
THE MORE DAMAGES!! supervoisro should draft contract carefully
these are common law realm
what are aggravated damages
thes damages arise when employer mishandles the termination process to cause additional harm that is not ordinary!
if employer tries to humiliate you or yellsa tyou in fron tof other people it leads to other damages!
MEANT OT COMPENSATE FOR HARM
aggravated damages needs to be proven! by employee
need to provide expert diagnosis like from aprofessional
like if allegations are made
what are punitive damages?
INTENT is present!!!
Meant to PUNISh employer so they dont repeat bad conduct
duty to mitigate
this is the duty that the innocent party must do something to mitigate the amount of damges they incur
employee needs to take reasonable steps to find anothe rjob after being fired
employee must maek reasonable effort to find a omcparable job
duty to mitiagte ONUS
· The onus is on the employer alleging that the employee did
not adequately mitigate to prove, not only a lack of sufficient
effort by the employee, but also the availability of similar
employment.
BUT IF THEY DONT ASK TYOU DONT HAVE TO PROVIDE
CONSTRUCTIVE DISMISSAL
Like wrognful dismissal, but the employer doesnt explicitly fire you BUT MAKES YOU SUFFER SO YOU TAKE LEAVE
radically ALTERED your job
Constructive dismissal is whene mployer breaks or repudiates fundamental term of contract
employees options:
- accept the new terms
OR
- treat the contract as broken and sue for damages
a wrongful dismiaal and constructive dismissal
BOTH ARE BREACH OF CONTRACTS
2 PART TST FOR CONSTRUCTIVE DISMISSAL
- EMPLOYEE MUST IDENTIFY AN EXRESS OR IMPLIED TERM OF COTNRACT THAT WAS BREACHED
- DETERMINE WHETHER THE BREACH IS SERIOSU ENOUGH TO CONSTISTUE CONSTRUCIVE DISMISSAL
a minor breach is not constructive disissal
what consstutues constructive dismissal
change in job duties
change in salary or benefits (10% is not a serious enough change in o&g, but 30% is)
change in location of employment
if there is no contract…
then you are entitled to the COMMON law!!!! not just the stat minimum
