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Summary dismissal in Canada is complex

court-in-sessionBy now, regular readers should understand that summary dismissal in Canada is complex, and assessing whether or not just cause for dismissal exists requires much more than consideration of the alleged misconduct in isolation.

The seminal judgment on the issue of just cause remains the decision of the Supreme Court of Canada in McKinley v. B.C. Tel., in which the Court wrote as follows:

More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or indirectly inconsistent with the employee’s obligations to his or her employer. “In accordance with this test, a trial judge must instruct the jury to determine: (1) whether the evidence established the employee’s deceitful conduct on a balance of probabilities; and (2) if so, whether the nature and degree of the dishonesty warranted dismissal. (emphasis added)

Our courts have recognized the fundamental importance of employment to an individual and have made it clear that while summary dismissal is appropriate is appropriate in some circumstances, the threshold is high for what has been dubbed “the capital punishment of employment law”.

It is clear that the principle of proportionality must be respected, but that it is not accurate to suggest that “the punishment must fit the crime”, since the contextual approach requires consideration not only of the “crime”, but of all relevant circumstances. That includes factors such as

  • The employee’s length of service;
  • The employee’s prior disciplinary history;
  • The degree of trust required;
  • The employee’s response when confronted;
  • Any mitigating circumstances; and
  • Any other relevant factors.

Ultimately, the Court must assess whether the employment relationship has been damaged beyond repair. In many cases, seemingly egregious misconduct has been found not to be just cause for dismissal within the context of all relevant factors. Often, employers and the general public are shocked by our Courts’ willingness to offer people a second, third and even fourth chance. They wonder what it takes to fire someone in this country.

Every now and then, a decision is released that reassures employers that summary dismissal will be upheld in the right circumstances. The recent decision of well-respected Arbitrator Peter Chauvin in Firestone Textiles Company v United Food and Commercial Workers Canada, Local 175, is one such case. In that case, the employee was in his late 50s and had 36 years of service. However, a single incident led to the end of his employment. Somewhat inexplicably, he became annoyed with a co-worker banging the lid of his lunch container, took out the two utility knives he had with him for work, and asked “Would you like the curved blade or the straight blade?”

He then attacked his colleague by swinging one of the knives, and when the colleague tried to defend himself, he received a shallow cut. Shortly after, the grievor said “You are lucky that I didn’t stab you in the heart.”

The employee was fired, and a grievance was filed. The union submitted that there were mitigating circumstances which should have led to a conclusion that dismissal was too harsh. Arbitrator Chauvin thoroughly considered the law and facts; his reasoning is insightful:

[29] It is most unfortunate that the Grievor did what he did on September 28, 2013. It has had a profound effect upon him. He lost his job after 37 years of service. He was convicted of two criminal offenses. He is not in receipt of employment insurance payments, and he has not been able to find any meaningful work. He is now 58 years of age, and his job prospects are not good. However, his act of violence was most serious, and considering both the aggravating and mitigating factors, there are insufficient grounds to substitute a lesser penalty than discharge.

[30] First, there was no justification or explanation for the Grievor’s outburst. Rather, it was simply an irrational act of anger. The Grievor has now received counselling and anger management training. However, his unexplainable act still renders it questionable whether he would engage in similar misconduct if he were returned to work.

[33] Also, on October 3, 2013 the Grievor lied to Ms. Ruffo about why he took out the utility knife. Even five days later, the Grievor had still not yet accepted responsibility for his actions.

[34] Although the Grievor was open and honest at the hearing in admitting to his wrongdoing, he did not specifically apologise for his misconduct, which again leaves it questionable as to whether he fully accepts responsibility for his actions. Also, although he Grievor did express regret for his misconduct, it appeared that he regretted the effect it has had on him. This is not the type of regret that amounts to a mitigating factor. Rather, it is more an aggravating factor.

[37] The mitigating factors put forward by the Union do not outweigh the seriousness of the Grievor’s misconduct, and the other aggravating factors discussed above. The fact that the Grievor’s misconduct was an unprovoked momentary outburst is more of a concern than a consolation. Unfortunately, on the most serious facts of this case, the Grievor’s age, 36 years of service, disciplinary record and economic circumstances do not warrant that a lesser penalty be substituted. Accordingly, the Grievance is dismissed. (emphasis added)

As I often say, “just cause is not a lost cause”. While sometimes, our courts and arbitrators seem to find ways to “save” employees that behave egregiously, cases like this provide some assurance that employers can fire employees where it is deserved.

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Stuart Rudner, Rudner Law

Employment Lawyers and Mediators at Rudner Law
Stuart Rudner is a leading HR Lawyer, mediator and a founding partner of Rudner Law, a firm specializing in Canadian Employment Law. At Rudner Law, their approach is simple. They want to understand your circumstances, your concerns, and your goals. They will then ensure that you understand the legal regime along with your rights and obligations. Once that is done, they work with you to design a cost-effective strategy that meets your needs. They want to be your trusted advisor.Read more
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