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summary dismissal

The need for clear warning before dismissal

I have often discussed the need for warnings in the context of summary dismissal. While some situations will justify dismissal based upon a single incident, in many cases our courts and arbitrators will require progressive discipline. Whatever the steps may be, it is critical that the messaging to the subject employee be clear: the conduct or behavior is unacceptable, and further instances will lead to discipline, which can include termination for cause.

 

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Little judicial tolerance for zero tolerance policies

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.

 

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Jumping to conclusions proves costly for employer

A recent decision from the Ontario Superior Court is a reminder to employers that dismissal for just cause must be based on solid ground. Relying on vague acts of misconduct will not suffice, and policies must be properly implemented and consistently enforced.

 

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A brief overview of just cause cases

As any follower of Canadian employment law already knows, there are many grey areas and very few “black-and-white” rules. One of the greyer areas is summary dismissal; evaluating when an employer has just cause to terminate the employment relationship is fraught with uncertainty. Contrary to popular belief, there are no absolute rules and there are no types of misconduct that will guarantee the existence of just cause for dismissal.

 

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Building the just cause wall brick by brick

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?

 

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Assessing whether just cause is warranted: A yearly review

In the course of updating my text, You’re Fired! Just Cause for Dismissal in Canada, I review every single court and arbitrator’s decision dealing with just cause for dismissal. Not surprisingly, these can be pretty entertaining. However, the cases also confirm a few truths:

 

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Investigations have become an integral part of HR and employment law

Investigations have become an integral part of HR and employment law, and an employee’s conduct in the course of an investigation can be the difference between summary dismissal and some lesser form of punishment.

 

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The importance of workplace investigations

As I head to Osgoode Professional Development for module 3 of the course that my partner and I are Directors of, HR Law for HR Professionals, I am contemplating one of the aspects of HR law that has changed significantly in recent years: investigations.

 

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Employers may be able to rely upon after-acquired cause

Although I have been known to reassure employers that “just cause is not a lost cause”, it is fair to say that the threshold for establishing that summary dismissal is warranted is a difficult one to meet in most circumstances. One question that often arises is what an employer is to do when they only learned of reasons for dismissal after the dismissal has already taken place. This can occur in situations where an employee was dismissed on a without cause basis, or in situations where the termination was for cause. Either way, the issue is what an employer can do with subsequently obtained information, which is typically referred to as “after-acquired cause”.

 

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Delayed termination of employee sometimes weaken position for just cause dismissal

“We cannot continue to tolerate John’s misconduct, and we have decided to dismiss him for cause… once we get through the trade show next month.” Famous last words? Well, they will certainly weaken the position that just cause for dismissal existed in the circumstances. If an employer truly believes that they have just cause for dismissal, the employee should not be permitted to continue working, as that is entirely inconsistent with the notion that the employer could not continue to keep the employee on.

 

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Proving cause remains an up-hill battle

A recent decision of the Ontario Court of Appeal, confirming a trial decision, once again demonstrates the difficulty employers will face in satisfying courts in this province that there was cause for dismissal.

 

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The law of dismissals: just cause is not a lost cause

Dismissals for cause can be one of the most interesting and challenging issues within the world of HR. While some companies have simply given up, I often say that “just cause is not a lost cause”.

 

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A quick primer on just cause termination

wheelchair

Every month I have the benefit of drafting a quick blog on great employment law topics. A case that I very recently read, which is probably the best employment case I have ever read, catalyzed my interest in drafting a quick primer on the law of just cause. In the case of Barton v. Rona Ontario Inc. (2012 ONSC 3809) the plaintiff Kerry Barton was an assistant store manager at Rona in Barrie. He managed approximately 140 employees. One of the employees was wheelchair bound…

 

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Failing to use performance and salary reviews properly

In order to be in a position to dismiss an employee for cause, it is critical that the employer have appropriate documentation. However, many managers and supervisors unwittingly place their employers in a weakened legal position by failing to use performance and salary reviews properly.

 

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Litigating just cause cases

Making the decision to dismiss an employee for just cause and litigating a wrongful dismissal claim on the basis of summary dismissal are two different things…

 

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