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Building the just cause wall brick by brick

As the author of You’re Fired! Just Cause for Dismissal in Canada, I am often asked what it takes to prove that summary dismissal is warranted. Can a single incident of misconduct be sufficient? What about a series of less serious incidents?

When it comes to assessing the impact of repeated misconduct in which each incident, on its own, would not constitute just cause for dismissal, I like to refer to the highly-respected employment lawyer, Judge, and author of The Law of Summary Dismissal in Canada, the late Mr. Justice Randall Echlin. Randy, whom I considered to be a friend, rendered many important decisions during his brief time on the bench. In Daley v. Depco International Inc., 2004 CanLII 11310 (ON SC), he wrote as follows:

The conclusion that must be drawn in this instance is that the series of acts cumulatively do amount to enough bricks to constitute a just cause wall.

I love the concept of building just cause “brick by brick”; it is an analogy I use often with clients to demonstrate how ongoing issues with an employee can justify summary dismissal even though none of the issues, on their own, would.

This concept was recently referenced by M.A. Sanderson J. in Chopra v. Easy Plastic Containers Limited, 2014 ONSC 3666. In that case, the plaintiff worked as a labourer for approximately eight years. Unfortunately, the evidence disclosed frequent issues regarding his conduct and performance. These included policy breaches for, among other things, allowing people into restricted areas, allowing workers he was supervising to ignore policies regarding clocking in and out of work, allegations of sexual harassment, failure to perform his duties properly, directing workers to carry out their duties in an unsafe manner contrary to safety policies, and conspiring to have other workers support a false allegation of harassment. The list of “incidents” and discipline, as set out in the judgment, is truly impressive.

Ultimately, the company decided it could no longer work with Mr. Chopra, and dismissed him for cause. The culmination of the dismissal letter read as follows:

All of your actions taken together have caused management to conclude that it can no longer continue to employ you.

At trial, the court preferred the evidence put forward by the employer. The court reviewed the law regarding summary dismissal and the need to adopt a contextual approach and consider all relevant factors and circumstances. It went on to address issues of “cumulative just cause”, and held as follows:

[96] I am of the view that Easy gave Chopra ample verbal and written warnings of its dissatisfaction with his performance and conduct. It gave him every opportunity to improve his behaviour. Easy documented his behaviour and told Chopra he was required to correct it.

[97] Chopra’s behaviour fell below any reasonable standard of conduct. The cumulative incidents were not minor or trifling. They affected the workplace as a whole.

[98] Easy had just cause to terminate Chopra’s employment because of the performance issues set out earlier and in addition insubordination and conduct specifically designed to harm Easy, including spreading rumours that Easy was closing.

[99] As Echlin J. stated it in Daley: “The conclusion that must be drawn in this instance is that the series of acts cumulatively do amount to enough ‘bricks to constitute a just cause wall.'” In my view there were sufficient bricks here to constitute a just cause wall. [emphasis added]

For employers, this case is a helpful reminder that it is possible to justify summary dismissal even in the absence of a “major” disciplinary incident. And for employees, it is a reminder that you can be fired for a series of relatively minor transgressions that, on their own, would not result in summary dismissal.

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Stuart Rudner

Employment Lawyer at Rudner MacDonald LLP
Stuart Rudner is a leading HR Lawyer and a founding partner of Rudner MacDonald LLP, a firm specializing in Canadian Employment Law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is the author of You’re Fired! Just Cause for Dismissal in Canada, a textbook and database of summary dismissal cases published by Carswell. Read more
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