SafeWork Summit - NiagaraSeptember 24, 2013

Ramada Jordan Beacon Harbourside Hotel & Suites

Presented by

Stuart E. Rudner

Employment Law:Discipline & Dismissal

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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”

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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

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Common Law: The Length of Notice

Requirement: “reasonable” notice of dismissal

The Bardal Factors 1) Length of service2) Age3) Position / Character of Employment4) Availability of Similar Employment

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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

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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.

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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.

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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

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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”

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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

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Just Cause: Performance Issues

Employer must:Set a clear, reasonable standardCommunicate expectationsMeasure the performanceTake appropriate action

–Warnings (verbal and written) – document everything!

–Counseling–Training

Allow reasonable time for improvement

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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;

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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.

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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)

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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)

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“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

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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

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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

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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

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.

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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

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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

Employment Agreements

Use them!

Do it properly– Before there’s already an agreement– With consideration– Explained and understood– Independent legal advice

Employment Agreements

Basic Checklist:– Duties (maintain flexibility)– Remuneration and benefits (maintain

flexibility)– Restrictive Covenants– Vacation– Termination– No conflicting obligations

Employment Agreements

Basic Checklist (cont’d):– Hours of work– Vacation / holidays– Dress code– Alcohol– Conflict of interest– Expenses– etc

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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

Protecting the OrganizationA. Have a policyB. Use clear and unambiguous languageC. Update the policy as technology

changesD. Publicize the policyE. Make employees aware of concernsF. Ensure supervisors and managers are

aware of the policy and how to monitor;G. Monitor behaviourH. Discipline violators

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Stuart E. Rudner

srudner@rudnermacdonald.com647.255.3100

www.rudnermacdonald.com

Twitter: @CanadianHRLawLinkedIn: Connect with me and join the

Canadian HR Law GroupBlog: Canadian HR Law

http://www.hrreporter.com/blog/canadian-hr-law

Google+: Canadian HR Law

Thank you