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Little judicial tolerance for zero tolerance policies

dismissalJust because there is a zero tolerance policy in place, employers should not assume that they can fire an employee who breaches the policy without any risk.

Employers often adopt zero tolerance policies and assume that doing so will give them the right to immediately fire someone for a breach. These are often used for transgressions that are considered particularly egregious, such as harassment. Although we consistently advise employers to address misconduct such as harassment and make it clear that such behaviour is unacceptable, the reality is that courts will not be bound by zero tolerance policies and will conduct their own assessment of whether summary dismissal is warranted. Saying that “we have a zero tolerance policy” will not be the end of the story.

Things have changed over time. Back in 1845, the Court of Exchequer took a particularly harsh approach in Turner v. Mason. In that case, a domestic servant had requested a night off to tend to her desperately ill mother, but her request was refused. She left anyway, and was summarily dismissed. In what may seem to be a particularly harsh decision, the Court found that the dismissal was justified in that case, strongly suggesting a judicial “zero tolerance” approach to insubordination.

Readers will probably find it hard to imagine that the Court in Turner v. Mason found that the excuse given for the servant’s behaviour was not sufficient and dismissal was upheld. However, it seems unclear as to whether the servant had advised her employer of her mother’s illness.

Even if it was clear that the employer knew of the reason for the disobedience, the Court appears to have gone out of its way to suggest that it may not have made a difference, stating:

Even if the replication shewed that he had notice of the cause of her request to absent herself, I do not think it would be sufficient to justify her in disobedience to his order; there is not any imperative obligation on a daughter to visit her mother under such circumstances, although it may be unkind and uncharitable not to permit her.

Another member of the Court weighed in as well, adding:

[I]f this were otherwise, these circumstances would amount only to a mere moral duty, and do not shew any legal right. We are to decide according to the legal obligations of parties. Where is a decision founded upon mere moral obligation to stop? What degree of sickness, what nearness of relationship, is to be sufficient? It is the safest way, therefore, to adhere to the legal obligations arising out of the contract between the parties. There may, undoubtedly, be cases justifying a wilful disobedience of such an order; as where the servant apprehends danger to her life, or violence to her person, from the master; or where, from an infectious disorder raging in the house, she must go out for the preservation of her life. But the general rule is obedience, and the wilful disobedience is a sufficient ground of dismissal.

The notion of a zero tolerance approach, or an absolute rule that any act of insubordination will constitute just cause for dismissal, was subsequently rejected. In 1959, the British Court in Laws v. London Chronicle explicitly wrote that it would:

be going too far to say that any of those judges laid it down as a proposition of law that every act of disobedience of a lawful order must entitle the employer to dismiss. I think that cannot be extracted from the judgments; and I am satisfied that it is too narrow a proposition as one of law.

The Supreme Court of Canada referenced this decision in its own landmark decision in McKinley v. BC Tel:

A similar analysis was undertaken in subsequent decisions dealing with this issue. For instance, in Laws v. London Chronicle, Ltd., [1959] 2 All E.R. 285, the English Court of Appeal stated the following at p. 287: [S]ince a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.

As such, Lord Evershed, M.R., held that a single act of disobedience justified dismissal only if it demonstrated that the servant had repudiated the contract or one of its essential conditions. In this way, the ruling in Laws indicated that an analysis of whether an employee’s misconduct warrants dismissal requires an assessment of its degree and surrounding circumstances.

For more modern language, without reference to masters and servants, one need look no further than another of the leading cases on just cause, R. v. Arthurs:

If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer’s business, or if he has been guilty of wilful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee.

Since that time, the case law has made it clear that in order to justify summary dismissal, an employer must show that the employee deliberately refused or defied clear and unequivocal instructions of a superior to carry out orders that were known and that were reasonable in the fulfillment or pursuit of the employer’s business. Furthermore, the employer must demonstrate that the employment relationship has been irreparably harmed by the employee’s disobedience, along with any other misconduct.

Even when it comes to theft, harassment, or other “clear” and severe transgressions, we know that any summary dismissal will be assessed using a contextual analysis. Courts will not only consider the misconduct in question, but all relevant factors. This will include the employee’s length of employment, prior disciplinary history, and any mitigating factors. Our courts will not give up their discretion to consider such factors by enforcing zero tolerance policies that only consider the alleged misconduct.

I often advise employers to enact clear policies but to refrain from using zero tolerance policies, as they will not allow the employer to avoid having to justify the dismissal using a contextual approach. While some have asserted that a zero tolerance policy sends a strong message to employees and discourages misconduct, even if it is unenforceable, the problem is that if a dismissal is overturned, the opposite message will be sent.

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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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