This document summarizes the key points from a presentation on employment law regarding discipline and dismissal. It discusses the two types of dismissal (with or without cause), entitlements for employees dismissed without cause such as notice periods or severance pay, and factors for determining reasonable notice periods. It also outlines what employers must demonstrate for dismissals deemed "for cause" related to misconduct or performance issues. Specific examples of threats, violence and off-duty conduct that could warrant discipline are mentioned. The importance of a fair investigation process prior to dismissal is stressed.
Understanding the Role of Labor Unions and Collective Bargaining
Employment Law: Discipline & Dismissal
1. SafeWork Summit - Niagara
September 24, 2013
Ramada Jordan Beacon Harbourside Hotel & Suites
Presented by
Stuart E. Rudner
Employment Law:
Discipline & Dismissal
2. 2
Dismissals
2 types: With cause or without
cause
If with cause, no further
obligation to employee
Otherwise, need to assess
employee’s entitlements to
notice/pay in lieu/severance
No “near cause”
3. 3
Without Just Cause
Notice of Dismissal or Pay in Lieu
Two sources of entitlement
– Employment Standards Act /
Canada Labour Code
– Common Law
Can contract out of common law
4. 4
Common Law: The Length of
Notice
Requirement: “reasonable” notice
of dismissal
The Bardal Factors
1) Length of service
2) Age
3) Position / Character of Employment
4) Availability of Similar Employment
5. What is “reasonable”?
No “rule of thumb” or direct 1:1
relationship between years of service and
months of reasonable notice
Beware the short-term employee
Inducement
5
6. The Changing Times
End of mandatory retirement, people
working longer --> Wrongful dismissal
claims by workers in 70s and 80s!
Recent decision:
I do not think there is a place in this social reality
for an automatic presumption that persons should
or would naturally retire on reaching senior age.
6
7. The Changing Times
Di Tomaso v. Crown Metal Packaging Canada
LP:
there is recent jurisprudence suggesting
that, if anything, (position/character of
employment) is today a factor of declining
relative importance.
7
8. 8
Without Cause: Options
Working notice
– must allow opportunity to
look for new employment
Salary & benefit continuance
Lump-sum
Combination
Dangers of failing to continue benefits
9. 9
For Just Cause
Capital Punishment of Employment Law
Employer must prove:
1. that the alleged misconduct took place,
and
2. that the nature or degree of misconduct warranted
dismissal, bearing in mind all relevant
circumstances
Proportionality is guiding principle – “punishment
must fit the crime”
10. The Contextual Approach
Employer must consider all circumstances,
not just alleged misconduct
– Length of service
– Disciplinary history
– Nature of position
– Degree of trust required
Same set of facts can yield different
results
10
11. 11
Just Cause: Performance Issues
Employer must:
Set a clear, reasonable standard
Communicate expectations
Measure the performance
Take appropriate action
– Warnings (verbal and written) – document
everything!
– Counseling
– Training
Allow reasonable time for improvement
12. Breach of Policies
In order to discipline, must show:
1. That there was a clearly worded policy
in place at the time of the alleged
infraction;
2. That the employee in question was
aware, or ought to have been aware, of
the policy;
12
13. 3. That the policy was consistently
enforced;
4. That it was clear that breaches of the
policy would lead to discipline, up to and
including dismissal; and
5. That the policy was reasonable.
13
14. Safety Policies
Policies must be consistently enforced:
Plester v. Polyone Canada Inc. (2011)
“Lock-out” cases rarely justify dismissal in
absence of other factors: Alberici
Construction Ltd. v. Electrical Workers
Local 353 (2011)
14
15. Lifting wheelchair-bound employee via
forklift – not cause: Barton v. Rona
Ontario Inc. (2012)
Lighting co-worker on fire – not cause:
Dryco Drywall Supplies Ltd. And Teamsters
Local Union No. 213 (2012)
15
16. “Zero Tolerance”
Courts will not necessarily accept this –
will determine appropriate punishment
Teck Coal Ltd. v. U.S.W., Local 9346 (2011)
Employee riding on truck, undid seatbelt,
stepped out onto deck, held onto
doorframe & tossed apple into grader
5 day suspension imposed
16
17. 17
Threats & Violence After Bill 168
Employee with history of anger issues
“Don’t talk about Brian - he’s dead.”
“Yes, and you will be too.”
the utterance of a threat of violence – for the purpose of
intimidation - constitutes an act of violence
this is true regardless of whether or not:
– the person issuing the threat has any intention to follow through
– the person issuing the threat has any ability to follow through
– the person receiving the threat feels afraid
18. 18
employers cannot ignore, dismiss, or trivialize reported
threats and incidents
reported incidents must be thoroughly investigated and
addressed
when considering how to discipline an employee for
uttering a threat, an employer must:
– place extra weight on the seriousness of this sort of misconduct
– assess the likelihood that the misconduct could or would be
repeated if the worker remained in the workplace
– act in a manner which gives due consideration to the safety of
other workers
19. Contrast with Overwaitea Food Group and
UFCW, Local 1518 (FS Grievance), Re
Grievor found to have threatened to bring
gun into store
Allowed to continue working – employer
not concerned
Dishonest in investigation
Just cause found
19
20. Can You Discipline for Off-Duty Conduct?
Generally, what you do on your time is your business
But if
– The conduct renders the employee unable to perform his
duties satisfactorily.
– The conduct interferes with the efficient management of
the operation or workforce.
– The conduct leads to a refusal or reluctance of other
employees to work with him.
– The conduct harms the general reputation of the Employer,
its product or its employees.
21. 21
The Importance of the
Investigation
Investigate first
Ensure fairness, objectivity, thoroughness
Give opportunity to respond
Often, employee response is critical factor
in determining appropriate discipline
22. 22
Human Rights Claims
Cannot dismiss based upon protected
ground
Caution when applying performance
requirements
Even if tiny part of reason was
protected ground despite other
legitimate reasons
Potential for “general damages” plus
damages for loss of income from date
of dismissal to date of hearing
23. Employment Agreements
Use them!
Do it properly
– Before there’s already an agreement
– With consideration
– Explained and understood
– Independent legal advice
25. Employment Agreements
Basic Checklist (cont’d):
– Hours of work
– Vacation / holidays
– Dress code
– Alcohol
– Conflict of interest
– Expenses
– etc
26. Termination Clauses
Enforceable if done properly
Avoid uncertainty of “reasonable
notice”
Reduce dismissal costs
Don’t go below employment
standards
Address benefits
Use clear
language 26
27. Protecting the Organization
A. Have a policy
B. Use clear and unambiguous language
C. Update the policy as technology changes
D. Publicize the policy
E. Make employees aware of concerns
F. Ensure supervisors and managers are aware
of the policy and how to monitor;
G. Monitor behaviour
H. Discipline violators