CHAPTER 13- DISMISSAL WITH A CAUSE

1. Under the common law, the term “just cause” has a particular meaning in
the context of dismissal: it does not simply mean that an employer had a
good reason, such as a need to downsize, for dismissing an employee.
The essential legal question is whether an employee breached the
employment contract in such a fundamental way that the employer is no
longer bound by the common law obligation to provide reasonable notice
of termination or pay in lieu of reasonable notice.
2. Procedural fairness: certain process rights that one party provides to
another, such as an employer giving an employee an opportunity to
respond to allegations against him or her.
3. Onus and Standard of Proof: Because the consequence of a finding of just
cause—dismissal without notice or pay in lieu of notice—is severe, the
courts are reluctant to reach this result. The onus of proof is on an
employer to show that an employee breached an employment contract in
a fundamental way.
4. Case: Billingsley v Saint John Shipbuilding Ltd, in which the employer
alleged illegal drug use at work, an employer that alleges dishonest or
criminal acts to justify a dismissal may be required to meet an even
higher standard of proof than a balance of probabilities.
5. Proportionality—that is, the idea that any sanction must be proportional
to the conduct to which it relates. There are a few acts of misconduct—
such as theft, assault, breach of trust where a high level of trust is
required, or a significant incident of sexual harassment—that may
warrant dismissal for cause even if they occur only once, because they go
to the heart of the employment relationship.
6. In Fortis Energy Inc v International Brotherhood of Electrical Workers,
Local 213, the adjudicator upheld the termination of a 25-year service
customer service technician after he harassed his wife’s supervisor—who
had just suspended his wife for misconduct— by going to his wife’s
workplace, parking his employer’s service van near where the
supervisor’s car was parked, and making sure he made eye contact with
her. (The employee also later tried to cover up his misconduct.) In
upholding the termination, the adjudicator noted the high level of trust
required in a job which was, by its nature, largely unsupervised and the
potential reputational harm to which his misconduct exposed his
employer.
7. Employee’s Failure to Be Truthful During Investigation Justifies
Dismissal Obeng v Canada Safeway Limited, 2009 BCSC 8
Facts: Obeng was assistant manager at a Vancouver-area Safeway store
whose actions one day, as observed by several other staff members,
raised suspicions that he was stealing groceries. When asked for an
 explanation, Obeng became very upset and denied all of the allegations
made. For example, he vehemently denied placing groceries in a
shopping basket or even having a basket in his arms that afternoon. As a
result of Obeng’s failure, during several investigatory meetings, to
provide any alternative explanation for his actions, Obeng was dismissed
for theft. He sued the employer for wrongful dismissal damages.
Relevant Issue: Whether the employer had just cause for dismissal.
Decision: The court held that Safeway had just cause for termination, not
based on the alleged theft of groceries for which there was insufficient
proof, but on Obeng’s failure to be totally honest and forthright during
the employer’s investigation. Crucial to this finding was Obeng’s
admission at trial that he did have a grocery basket in his hands on the
day in question, which he had used to collect misplaced merchandise for
later reshelving. Although this was a reasonable explanation for his
actions, his failure to provide it during the employer’s investigation was
a breach of his obligation to provide full and truthful disclosure.
Referring to the contextual approach laid out in McKinley, the court
stated: Mr. Obeng understood theft was endemic in the grocery business
and a serious problem, and he knew that Safeway considered it grounds
for dismissal. He appreciated that, as a manager, his behaviour must be
seen to be beyond reproach, and he knew that Safeway’s Code of
Business Conduct required that he make full and truthful disclosure
during an investigation. … A denial is not an explanation, nor was it full
and truthful disclosure. Mr. Obeng’s dishonesty in relation to the
investigation of his conduct on August 28 justifies his termination.
8. Condonation:
Rodrigues v Shendon. In that case, a long-service store manager was
terminated for her inappropriate behaviour after receiving a letter
indicating that she was being put on probation pending an improvement
in her attitude. Her poor reaction to the letter included showing it to
colleagues—and even some customers—and calling the letter’s author an
“idiot” or a “moron” in front of her staff. Rodrigues sued for wrongful
dismissal and won she was awarded 16 months’ termination pay in lieu
of notice. In the court’s view, the employer had condoned her past
misconduct, and her reaction to the letter was exactly the type of conduct
the probationary letter was meant to address. By terminating Rodrigues
for cause based on that incident, the employer denied her an opportunity
to improve (Whitten & Lublin Employment Lawyers, 2012).
9. There are two general types of employee conduct that can justify
dismissal without notice: misconduct, such as acts of theft or
insubordination, and problems related to job performance.
10.If an employee’s dishonesty involves theft, the value of the stolen article
need not be significant to warrant dismissal for just cause if the employee
 is aware that such conduct is prohibited. In Mutton v AOT Canada Ltd,
the court found that an employee with less than a year’s service was
justifiably terminated for cause when he took stretch wrap from the
employer for personal use without permission.
11. In dealing with instances of employee dishonesty, an employer can put
itself in the strongest legal position possible by following the three steps
outlined below:
a) Provide clear written policies that outline required behaviour by
employees. Key policies should state that violations will be cause for
dismissal. To be effective, the policies must also be clearly
communicated to employees and consistently enforced.
b) Get the facts. An employer must ensure that it has its facts right. Not only
is there arguably a higher standard of proof required in cases where
dishonesty is alleged, but the employer may also be required to pay
additional compensation to an employee if it makes harmful accusations
without sufficient evidence to support them. Employers should
investigate incidents thoroughly—obtaining witness statements and
listening to an employee’s explanation—before deciding whether or not
to dismiss the employee for dishonesty. If the employee has a reasonable
explanation for her actions, such as taking computer equipment home to
finish a report on the weekend, a court will probably not find that the
employer had just cause for dismissing the employee. Proving that an
employee committed fraud or was dishonest requires convincing
evidence.
c) When allegations cannot be proven, provide a reasonable separation
package. If the employer cannot prove that the employee committed the
dishonest act, but no longer wishes to retain the employee’s services, it
should dismiss the employee “without cause” and provide a reasonable
separation package. This will protect the employer against additional
damages that it could be required to pay an employee if it makes
unsubstantiated allegations of dishonesty in a wrongful dismissal suit.
12.For absences that relate to disabilities, the Human Rights Code requires
employers to accommodate employees up to the point of undue hardship.
This may require them to accept irregular attendance or tolerate lengthy
absences over a long period of time.
13.Grounds That Cannot Constitute Just Cause
Ontario’s employment-related statutes prohibit employers from
dismissing employees on certain grounds, including an employee’s
assertion of her statutory rights. These grounds are set out in the list
below.
 Human Rights Code. An employer cannot dismiss or otherwise
penalize an employee for asserting his or her rights under the Code.
 Employment Standards Act, 2000. An employer cannot dismiss or
otherwise penalize an employee for asserting his or her rights
under the Act, including the right to pregnancy or parental leave.
 Occupational Health and Safety Act. An employer cannot dismiss
or otherwise penalize an employee for asserting his or her rights
under the Act, including the right to refuse unsafe work.
 Workplace Safety and Insurance Act, 1997. An employer cannot
dismiss or otherwise penalize an employee who is absent from
work for a work-related cause and has a right to be reinstated under
the Act.
 Pay Equity Act. An employer cannot dismiss or otherwise penalize
an employee for asserting his or her rights under the Act.
 Labour Relations Act, 1995. An employer cannot dismiss or
otherwise penalize an employee for union-related activity.

If an employer dismisses an employee for asserting his or her rights