Stuart spoke about Just Cause termination at the HRPA annual conference and trade show on January 24, 2014.
1. HRPA Annual Conference & Trade Show January 24, 2014 Toronto Presented by Stuart E. Rudner Just Cause: Not Necessarily a Lost Cause
2. 2 Dismissals 2 types: With cause or without cause If with cause, no further obligation to employee Otherwise, need to assess employees entitlements to notice/pay in lieu/severance No near cause
3. 3 Dismissals for Just Cause Capital Punishment of Employment Law Employer must prove: 1. that the alleged misconduct took place, and 2. that the nature or degree of misconduct warranted dismissal, bearing in mind all relevant circumstances Proportionality is guiding principle punishment must fit the crime
4. The Contextual Approach Employer must consider all circumstances, not just alleged misconduct Length of service Disciplinary history Nature of position No absolute rules Same set of facts can yield different results 4
5. Off-Duty Conduct Generally, what you do on your time is your business Unless The conduct renders the employee unable to perform his duties satisfactorily. The conduct interferes with the efficient management of the operation or workforce. The conduct leads to a refusal or reluctance of other employees to work with him. The conduct harms the general reputation of the Employer, its product or its employees.
6. 6 Reputation Teenage victim of bullying commits suicide Facebook memorial Individual posts: Thank God this b---- is dead He and his employer are readily identifiable Just cause for dismissal?
7. 7 Lougheed Imports Ltd (West Coast Mazda) v. UFCS Local 1518 (2010) employees fired for postings on Facebook posting included homophobic slurs and threats online against bosses don't spend your money at West Coast Mazda as they are crooks out to hose you and the shop ripped off a bunch of people I know
8. 8 Harassment Post on co-workers wall I loved the skirt you were wearing today. You have the sexiest legs in the office! I hope you have another short skirt you can wear tomorrow maybe no hose this time?
9. 9 Performance Issues Employer must: Set a clear, reasonable standard Communicate expectations Measure the performance Take appropriate action Warnings (verbal and written) document everything! Counseling Training Allow reasonable time for improvement
10. Breach of Policies In order to discipline, must show: 1. That there was a clearly worded policy in place at the time of the alleged infraction; 2. That the employee in question was aware, or ought to have been aware, of the policy; 10
11. 3. That the policy was consistently enforced; 4. That it was clear that breaches of the policy would lead to discipline, up to and including dismissal; and 5. That the policy was reasonable. 11
12. Lifting wheelchair-bound employee via forklift not cause: Barton v. Rona Ontario Inc. (2012) Lighting co-worker on fire not cause: Dryco Drywall Supplies Ltd. And Teamsters Local Union No. 213 (2012) 12
13. Implementing Policies A. Have a policy B. Use clear and unambiguous language C. Keep the policy up to date D. Publicize the policy E. Make employees aware of concerns F. Ensure supervisors and managers are aware of the policy and how to monitor G. Monitor behaviour H. Discipline violators
14. 14 Setting clear Rules 24 pictures of sunshine girls Although the nature of the pictures are offensive to a segment of society and may be offensive to some fellow employees without attempting to attach a label to these pictures it [is] sufficient to say that for the purpose of this arbitration they are not as labeled by the Employer. pornographic, sexually explicit pictures
15. Zero Tolerance Courts will not necessarily accept this will determine appropriate punishment Teck Coal Ltd. v. U.S.W., Local 9346 (2011) Employee riding on truck, undid seatbelt, stepped out onto deck, held onto doorframe & tossed apple into grader 5 day suspension imposed 15
16. 16 Threats & Violence After Bill 168 Employee with history of anger issues Dont talk about Brian - hes 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
17. 17 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
18. Contrast with Overwaitea Food Group and UFCW, Local 1518 (FS Grievance), Re Grievor found to have threatened to bring gun into store Allowed to continue working employer not concerned Dishonest in investigation Just cause found 18
19. 19 The Importance of the Investigation Investigate first Ensure fairness, objectivity, thoroughness Give opportunity to respond Often, employee response is critical factor in determining appropriate discipline
20. Vernon v. British Columbia 30 year employee accused of bullying/harassment Known as The Little General Offensive language, racial and other inappropriate comments
21. 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 21
22. 22 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
23. 23 Common Law: The Length of Notice Requirement: reasonable notice of dismissal The Bardal Factors 1) Length of service 2) Age 3) Position / Character of Employment 4) Availability of Similar Employment
24. What is reasonable? No rule of thumb or direct 1:1 relationship between years of service and months of reasonable notice Beware the short-term employee Inducement 24
25. 25 Reasonable Notice Periods 0 0.5 1 1.5 2 2.5 3 .6 to 2.5 2.6 to 5 6 to 1