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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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