Why do employers invoke just cause as a defense to a wrongful dismissal action? Sometimes the employee’s behaviour is so egregious that the employer feels that it has no choice. In other instances, employers know that their case is weak but they want to set an example for other staff. Finally, for some employers, this is a strategy to deter an employee from pursuing her action and saving on severance.
If an employer succeeds in proving just cause, they do not have to pay severance or pay in lieu of notice. But the threshold is exacting. Not every act of misconduct will attract the sanction of just cause, as B.C Tel learned in its experience with Mr. McKinley a former senior executive. Although he was not fully candid in describing his medical condition to his employer, the Supreme Court of Canada ruled that this act of dishonesty was insufficient to relieve the employer of its obligation to give reasonable notice. The wrongdoing had to go to the core of the employment relationship before it reached the level of just cause. This is also referred to as the doctrine of proportionality.
The ripples of this decision are still being felt across Canada. Theft, fraud and sexual harassment will constitute cause. But other forms of misconduct may not, as seen in the recent Ontario Superior Court of Justice case of Plester v Polyone. A long term employee and supervisor, John Plester was trained on the importance of immediately reporting on any safety infraction in his employer’s manufacturing environment on penalty of termination. In one notable instance, not only did Plester fail to self-report a safety offence but he asked staff to delay their reports. When Polyone discovered Plester’s misdeeds, he was fired for cause.
Rejecting the employer’s argument that safety was of cardinal importance at Polyone, the trial judge and the Ontario Court of Appeal ruled that termination was not warranted. Considering the long service of the employee (years) Plester’s otherwise unblemished record of service and the fact that no one was hurt, the employer’s decision to fire him was not proportionate to the offence.
The lessons of these cases cannot be lost on both employers and employees. For employers, step back and assess before terminating. Do not be blinded by the wording of your policy. Employees who are on the receiving end of such decisions would be well-advised to seek the counsel of an employment lawyer to ascertain their rights.