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        Employment lawyers restricted to wrongful dismissal litigation
          Employment lawyers restricted to wrongful dismissal litigation

Toronto

Ontario

Canada

 

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Employment lawyers restricted to wrongful dismissal litigation
Labour & Employment Lawyers

Tel: (416) 590-1900
Fax: (416) 590-1600

info@dumarkowitz.com

17th Floor, Yonge/Eglinton Centre
2300 Yonge Street
Suite 1750
Toronto, Ontario
M4P 1E4


"Work  is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society.  A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being."

-- Chief Justice Dickson, in Reference re: Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 (Supreme Court of Canada),
at page 368.

 

Attorney Howard Markowitz answers live radio inquiries on: 

Just cause: What is "wrongful dismissal"?

A bend in the road isn't the end of the road - unless you fail to make the turn. Fortunately, case law provides that Ontario workers dismissed without "just cause" are entitled to paid period of "reasonable notice" to land replacement employment at comparable job conditions and salary.

Should your matter proceed to court, remember that it's ultimately your employer's burden to establish "just cause" for your dismissal on a balance-of-probabilities (>50% likelihood) standard of proof. In other words, an employer establishing "just cause" can immediately dismiss its worker without further legal obligation - whereas failure to establish "just cause" will constitute "wrongful dismissal" and employer's corresponding liability to pay you "reasonable notice" damages as a result.

Given harsh consequences of losing one's job without severance pay, Ontario courts have set the bar very high for employers to establish "just cause" necessary to sanction employee dismissals without notice. Meanwhile, it's not every act of employee misconduct or impropriety that will constitute just cause, just like not every insignificant breach of most leases, deeds, or other forms of contract will permit the innocent party to bring the relationship to an end. Therefore, a court's finding of "just cause" for dismissal without notice will only arise from more extreme situations tantamount to employee's repudiation of the whole employment relationship.

Finally, most allegations of "just cause" will include one or more of the following improprieties, each of which have been successfully defended on arguments below.

Incompetence
Measure of an employee's competence extends beyond mere fact of working to the best of one's ability, and will therefore take into account employee's perception of actual work performed, employer's pre-employment representations, and relevant job description in issue. Accordingly, heavy onus lies on your employer to demonstrate objective circumstances reasonably supporting termination for incompetence, and no employee can be lawfully terminated for incompetence based only on employer's mere personal/subjective viewpoint alone.

Insubordination
Insubordination is the refusal of an employee to follow company instructions as directed, including but not limited to employee conduct challenging supervisor's authority and related policies. Accordingly, employees who mock, curse, and/or otherwise ignore supervisory instruction and/or company policy may well be viewed as acting in an insubordinate manner, and such actions may very well constitute just cause for dismissal. That said, employees can still argue reasonable justification for any such disobedience, along with disproportionably drastic consequences relative to worker's long-term employment history at stake.

Absenteeism
While some employers allow their employees a limited number of days absent from work, please note that such absence without valid reason may indeed constitute serious breach of the employment contract, and solid ground for your employer to terminate with cause. Therefore, experienced counsel will remind the court that unfortunately not all employees share same gifted levels of health, stress tolerance, and family commitments resulting in certain individuals naturally requiring more time away from work. By establishing employee's good faith, length of service, and reasonable surrounding circumstances, courts will typically assess your case individually on its own merits.

Lateness
Meanwhile, repeated lateness can similarly constitute just cause for termination. Generally, courts will review frequency of the lateness, extent of the lateness, and number of explicit warnings the employer has given the employee regarding tardiness in issue. Therefore, experienced counsel work towards minimizing these factors, while arguing that employer in fact condoned any such lateness by failing to issue timely written warnings of imminent dismissal generally required by leading case law in this area.

Intoxication and Addiction
While frankly pretty difficult to defend against on-the-job abuse of alcohol and/or drugs, aggressive employment lawyers nevertheless argue intoxication as a medical condition subjecting the employee to appropriate protection pursuant to section 17(1) and other provisions of the Ontario Human Rights Code relating to general illness and disability. In any event, an intoxicated office worker may very well pose little danger to the workplace relative to the alcoholic school-bus driver, and therefore not liable for automatic termination disproportional to any real workplace dangers posed.

Substance Abuse
An employer who becomes aware that his/her worker has a substance-abuse problem may very well face onerous responsibilities in dealing with this problem. This is particularly the case where the worker developed his/her addiction as a result of work-related stress. In these situations, lawyers have successfully argued employers' deemed anticipation of substance-abuse relapses and even reasonably-expected substandard performance to go alongside. In fact, this province's more progressive judges have even held employers accountable to provide costly counseling and/or other assistance to ensure their substance-abusing employees are in fact receiving the critical detox counseling they need.

Dishonesty
Theft and fraud are most common forms of dishonesty justifying termination from work. Yet, even lesser actions like untrustworthy conduct may constitute dishonest behavior too. Any such dishonesty triggering just cause for dismissal may have taken place either during course of the employment contract, and/or even prior to commencement of the job itself where a potential employee misrepresents their qualifications by resume or interview.

Dishonesty also occurs where an employee places themselves in conflict of interest situations, including but not limited to moonlighting in direct competition with their regular employer. Accordingly, dishonesty is best defended through arguments pertaining to honest mistake, misunderstanding rather than deception, and immediate termination simply too drastic a result given employee's length of service commitment and other circumstances judged on an individual case-by-case basis.

Sexual Harassment
Ontario's Human Rights Code protects co-workers from sexual harassment as follows:

7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

7(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

Where,
10(1) "harrassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.


Accordingly, sexual harassment is not only improper and deliberate conduct, but it is also conduct that creates strong grounds for dismissal with just cause. Sexual harassment can take place verbally, through gestures, by e-mail, physically, and/or in writing. Employee defence counsel will, nevertheless, argue that harassment is both case and circumstance specific, not to mention embarrassing for the employer should such allegations proceed publicly to trial.

Frustration of the Employment Contract
Frustration occurs when unforeseen events take place, caused by neither employer or employee, and which unexpected circumstances leave the employer little alternative but to terminate the employment contract. Experienced counsel will argue, however, that legal doctrine of frustration is generally reserved for more serious wars, terrorism, and freak acts of nature well beyond employer's reasonably foreseeable hardship, inconvenience, and/or material loss.

Conclusion
And so given detailed intricacies of "just cause" categories above, please note that while we can't direct the wind, expert employment lawyers can at least adjust the sails necessary to defeat typically trumped-up claims of "just cause" and win you maximum fair severance pay whether through negotiations or trial.

 
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