Dismissal for Cause

Employment Standards Act, 2000

No termination without notice 54 No employer shall terminate the employment of an employee who has been continuously employed for three months or more unless the employer,

(a) has given to the employee written notice of termination in accordance with section 57 or 58 and the notice has expired; or

(b) has complied with section 61. 2000, c. 41, s. 54.

James Caldwell v Noble Corporation, 2018 CanLII 44825 (ON LRB)

11. The second matter for determination, is whether the Applicant is disentitled to termination and severance pay otherwise payable by reason of “wilful misconduct” on his part. Ontario Regulation 288/01 stipulates at section 2(1):

2(1) The following employees are prescribed for the purposes of section 55 of the Act as employees who are not entitled to notice of termination or termination pay under Part XV of the Act:

…

3. An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.

At section 9(1), O.Reg 288/01 stipulates:

9(1) The following employees are prescribed for the purposes of subsection 64(3) of the Act as employees who are not entitled to severance pay under section 64 of the Act:

…

6. An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.

12. The concept of “wilful misconduct, disobedience or wilful neglect of duty” is a term of art distinguishable from that of “just cause” in the wrongful dismissal cases or in the arbitral jurisprudence under a collective agreement. A much-cited articulation of its meaning is that found in VME Equipment of Canada Ltd. (Re), [1992] OESAD No 230 (QL) where the Referee wrote:

There are two general categories of serious misconduct. There will be single acts: insubordination, theft and dishonesty, and physical violence against other employees, for instance, which may, standing on their own, meet that standard of seriousness. As well, there will be less serious repetitive forms of misconduct, which if handled properly by the employer, will also meet this standard of seriousness. The employer, in this scenario, must have explained to the employee after each occurrence that the conduct in question was not acceptable and that if continued would result in termination and there must be, subsequent to these warnings, a culminating incident.

In addition to proving that the misconduct is serious, the employer must demonstrate, and this is the aspect of the standard which distinguishes it from 'just cause', that the conduct complained of is 'wilful'. Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the standard. Rather, the employer must show that the misconduct was intentional or deliberate. The employer must show that the employee purposefully engaged in conduct that he or she knew to be serious misconduct. It is, to put it colloquially, being bad on purpose.

Dziecielski v. Lighting Dimensions Inc., 2012 ONSC 1877 (CanLII)

The Law – Just Cause

[34] The relevant principles of law are not in dispute.

The Investigation

[35] While there is no obligation on the employer to conduct a particular type of investigation before deciding to dismiss with cause, the onus is clearly on the employer to have regard to all the facts necessary for a full and fair understanding of what occurred. In other words, the employee has no procedural rights in the employer’s investigation, but the employer must make a decision on the basis of all of the relevant facts and considerations. (Porta v. Weyerhaeuser Canada Ltd., 2001 BCSC 1480)

A Single Isolated Event

[36] Normally, a single and isolated incident will not be sufficient cause to dismiss a long service employee, particularly one with a clean disciplinary and performance record. The one single event must be particularly egregious to justify dismissal with cause. Depending on the severity of the misconduct however, one act or incident may justify termination of employment. (McKinley v. BC Tel, 2001 SCC 38)

Intoxication

[37] Intoxication at work does not automatically justify termination. Again, the circumstances of the intoxication and the nature of the work in question will provide part of the context that must be considered by the employer. Where for example the job requires drinking alcohol with potential clients, intoxication alone should not be sufficient to establish cause. On the other hand an aircraft pilot who is intoxicated before a flight may be dismissed with cause due to the relationship between the conduct and the essential features of the work. (Birchall v. Canadian Helicopter Ltd. 1998 CarswellBC 3161 and MacDonald v Northern Breweries Ltd. 1989 CarswellOnt 3273)

A Contextual Analysis

[38] Essentially, there must be a contextual analysis of all of the circumstances to permit an assessment of whether the penalty is proportional to the misconduct and undermines the employment relationship. If the penalty is overly harsh, it will not amount to cause even in the face of an admission of wrong doing.

[39] In the Law of Summary Dismissal in Canada (Toronto: Canada Law Book, 2011) at paragraph 13:210 the late learned Justice of this court, R.S. Echlin provided an excellent summary of factors which should be considered to determine whether an employee’s misconduct justifies dismissal:

The following factors are relevant to a determination as to whether an employee’s misconduct justifies dismissal:

• whether the employee was guilty of serious misconduct;

• whether the employee’s impugned behaviour or act was merely conduct with which the employer disagreed, or “trifling causes”, rather than transgressions or misconduct which any reasonable person could not overlook;

• whether the employee’s misconduct was inconsistent with or prejudicial to the employer’s business, and therefore in breach of an implied term of the employment agreement;

• whether the employee’s misconduct was in breach of an express provision of the employment agreement; and

• whether the misconduct merely reflects the employee’s poor judgment or inadvertence.

In the case of criminal conduct, the following factors are relevant:

• whether the employee was culpable for the alleged criminal conduct, or misconduct of a criminal nature;

• whether the conduct was prejudicial or inimical to the employer’s legitimate business interests;

• whether the conduct was in breach of the implied duty of fidelity, or fiduciary duty, or an express condition of employment, and therefore in breach of the employment agreement;

• whether there is evidence of actual harm or evidence substantiating potential harm to the employer.