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You're fired! The Law of Dismissal in Canada.

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A presentation on the law of summary dismissal in Canada from May 2012.

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You're fired! The Law of Dismissal in Canada.

  1. 1. You’re Fired!Just Cause for Dismissal in Canada Stuart Rudner Toronto May 30, 2012
  2. 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” 2
  3. 3. For Just Cause• Employer must prove: – that the alleged misconduct took place, and – that the nature or degree of misconduct warranted dismissal• The Contextual Approach: Must consider all circumstances, not just alleged misconduct• Proportionality is required• Same set of facts can yield different results 3
  4. 4. Types of Cause• Dishonesty • Harassment• Theft/Fraud • Intoxication• Conflict of Interest • Absenteeism• Insubordination / • Off-Duty Conduct Insolence • Performance Issues• Breach of Rules/Policies 4
  5. 5. Just Cause: Performance Issues• Employer must: – Set a clear standard – Communicate expectations – Measure the performance – Take appropriate action • Warnings (verbal and written) – document everything! • Counseling • Training – Allow reasonable time for improvement 5
  6. 6. 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 6
  7. 7. • 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 7
  8. 8. The Importance of the Investigation• The importance of the investigation – Ensure fairness, objectivity – Often, employee response is critical factor in determining appropriate discipline 8
  9. 9. Vernon v. British Columbia (Ministry of Housing andSocial Development) (Liquor Distribution Branch)• 30 year employee accused of bullying/harassment• Known as “The Little General”• 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 9
  10. 10. Off-Duty Conduct• Employees can be disciplined or dismissed• Must show:1. the conduct of the grievor harms the Company’s reputation or product2. the grievor’s behaviour renders the employee unable to perform his duties satisfactorily3. the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him4. the grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees5. places difficulty in the way of the Company properly carrying out its function of efficiently managing its works and efficiently directing its working forces. 10
  11. 11. Online Conduct• Off-duty conduct that can lead to discipline 11
  12. 12. Woodstock (City) v. CUPE Local 1146 (2010) - worker fired after inappropriate comments to summer students via texts - female summer student made complaint for harassment - 20 year employee with no discipline history 12
  13. 13. - Employee was fired for harassment andabusing role as a supervisor- nature of the texts – more than “socialbantering”- Termination not upheld, employee wasreinstated with 2 month suspension anddemotion from supervisor position 13
  14. 14. EV Logistics and RWU (2008 – BCCA) - 22 year old employee posted racist, violent and disturbing comments - entries identified the employer - termination not upheld, replaced with lengthy suspension -reasoning that off-duty conduct of employee not specifically targeted at individual employees or customers 14
  15. 15. Common Law vs Employment Standards Act• Oosterbosch v. FAG Aerospace Inc.• 4 warnings in 1 year for poor performance, poor attendance and falsification of records.• other evidence of absenteeism/ lateness, poor performance• ongoing coaching/counselling sessions• Conduct was casual or careless but not wilful, intentional or reckless• ESA requires notice unless employee engages in “wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not be condoned by the employer” 15
  16. 16. 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 16
  17. 17. Statutory Notice Requirements Length of Employment Notice Required Less than 3 months None 3 months but less than 1 year 1 week 1 year but less than 3 years 2 weeks 3 year but less than 4 years 3 weeks 4 year but less than 5 years 4 weeks 5 year but less than 6 years 5 weeks 6 year but less than 7 years 6 weeks 7 year but less than 8 years 7 weeks 8 years or more 8 weeks 17
  18. 18. Common Law: The Length of Notice• Requirement: “reasonable” notice of dismissal• The Bardal Factors• No “rule of thumb” or direct 1:1 relationship between years of service and months of reasonable notice• Beware the short-term employee• Inducement 18
  19. 19. Reasonable Notice Periods 3 2.5 2Months/Year of Service 1.5 1 0.5 0 .6 to 2.5 2.6 to 5 6 to 10 11 to 15 16 to 20 21 and 26 and 31 and 36 and 25 30 35 40 Years of Service 19
  20. 20. 0-2 Years of ServicePosition Average RangeClerical 2.82 .2-12Supervisory 3.67 .2-9Sales 3.54 .01-15Lower Mngmnt 3.42 1-10Upper Mngmnt 6.76 3-12.75 20
  21. 21. 17-19 Years of ServicePosition Average RangeClerical 10.58 6-15Supervisory 12.63 9-16Sales 13.67 8-18Lower Mngmt 13.38 7-24Upper Mngmnt 18.14 12-24 21
  22. 22. Without Cause: Options• Working notice – must allow opportunity to look for new employment• Salary & benefit continuance• Lump-sum• Combination• Dangers of failing to continue benefits 22
  23. 23. Buy now!• http://www.carswell.com/descriptionchrr.asp?DocID=7425&pgid=author&promo=102• Or search for “Rudner You’re Fired” 23
  24. 24. Thank you Stuart E. Rudner Partner, Labour & Employment Group srudner@millerthomson.com 416.595.8672 or 905.415.6767 Twitter: @CanadianHRLaw LinkedIn: Connect with me and join the Canadian HR Law Group Blog: Canadian HR Law http://www.hrreporter.com/blog/canadian-hr-law Google+: Stuart Rudner 24
  25. 25. www.millerthomson.com Added experience. Added clarity. Added value.Follow us...