Employment Law Part III Overview

Overview of Part III

• Part III explores various ways employment ends and their legal implications.
• Examines voluntary resignations and retirements and employer-initiated terminations.
• It Reviews dismissal requirements with/without cause under common law and provincial legislation.
• Considers employee obligations that remain after the employment ends.
• Chapter 12 looks at resignation and retirement.
  • Learning outcomes includes:
    • Explain why an employer should formally accept an employee’s resignation in writing.
    • Understand why a resignation must be voluntary and unequivocal.
    • State why an employer should not dismiss an employee who gives notice of resignation.
    • Explain an employee’s obligation to provide notice of resignation.
    • Understand the implications of the elimination of mandatory retirement at age 65.
• Chapter 13 looks at dismissals for just cause.
  • Learning outcomes includes:
    • Differentiate between a good reason for dismissal and just cause for dismissal under the common law.
    • Understand the contextual approach to determining just cause for dismissal.
    • Identify the elements of procedural fairness in dismissals for just cause.
    • Discuss specific grounds for just cause, including dishonesty, insolence and insubordination, incompatibility, off-duty conduct, absenteeism, sexual harassment, intoxication, and incompetence.
    • Understand related concepts, such as condonation.
• Chapter 14 looks at dismissals, including constructive dismissals, in the absence of just cause.
• Chapter 15 reviews employee's post-employment obligations.

Common Law Dismissals

• Common law distinguishes dismissals with and without just cause which leads to a "all or nothing" outcome.
• If just cause isn't established, the employee is wrongfully dismissed and receives remedies.
• Establishing just cause allows summary dismissal without notice or pay in lieu.
• Employers dismissing without just cause must meet statutory and common law reasonable notice.
• Common law often requires more generous notice than provincial employment standards.
• Parties can contract out of common law notice via a termination clause with an alternative notice period.
• A contractual notice period matching legislative requirements means only the contract amount is needed.
• Post-employment obligations involve not disclosing confidential information or soliciting former customers.

Introduction to Resignation

• An employment relationship ends when an employee resigns or retires, which usually seems straightforward.
• Employers should be aware of potential legal issues that can arise.

Formal Acceptance of Resignations

• A resignation letter is typically binding on an employee, without any kind of coercion
• Employers accepts a resignation letter by formally communicating its acceptance
• Sending a letter confirming acceptance creates a binding agreement.

Voluntariness of Resignations

• Employees who resign are not typically entitled to wrongful dismissal damages.
• In this case amounts only owed would be outstanding wages and vacation pay.
• Employers cannot reduce wages or change employment terms after a resignation notice.
• Resignations must be voluntary; a "choice" between resigning or being dismissed is not voluntary.
• Involuntary resignations obligate the employer to provide pay in lieu of reasonable notice or show just cause.
• The legal test for voluntariness is objective: Would a reasonable person believe it was voluntary?.
• An employee can claim constructive dismissal if they resigned due to a fundamental contract change.
• It can lead to damages if a reasonable person believes the resignation stemmed from a contractual breach.

Resignation Based on Conduct

• Resignation inferred from an employee's actions needs intent and reaffirmation of decision.
• An employee saying "I'm leaving and don't expect me back" and not returning could indicate resignation.
• Returning uniform/keys or informing coworkers of departure can imply resignation.
• A formal acceptance letter confirms termination and is recommended when intent is unclear.
• If words are vague or equivocal, courts won't infer resignation.
• Employees leaving work early out of anger don't automatically mean resignation, but can lead to discipline.
• Resignations must be clear and unequivocal: subjective intention & objective actions.
• Brown, 2013 states subjective intention and objective actions must support a finding in resignation.

Rescinding a Resignation

• Employees may try to rescind resignation before it takes legal effect.
• Whether an employee can formally rescind a resignation after notice is accepted can be contested.

Notice Clarity

• Unequivocal notice of wanting to end employment must be present.
• Pollock v First Heritage Financial, 2002 BCSC 782 looked at a situation involved employees unhappy with compensation program changes.
• Two memos were sent: 1) Request to meet, 2) Willing to continue under current terms.
• The representative said they did not want to report to work under the old terms and conditions.
• Not an unequivocal notice as they stated to continue working under existing terms.
• Employer wrongfully dismissed the employee because of this.

Employment Termination

• Employee must form the intention to resign as one of the key aspects of dismissal.
• Gilbert v Tandet Transport Inc, [2002] CLAD No 196 (QL) (Arb Bd) looked at a situation involved employee was temporarily laid off and found part-time work.
• Employer issued recall notice, if failed to return by June 9, would be treated as resigned.
• Employee left messages asking about returning part-or full-time because he didn't want to leave his part-time job.
• The arbitrator determined that there was no formed intention to resign.

Intent Inferred Through Conduct

• Coutlee v Apex Granite & Tile Inc, 2020 BCSC 315 found a situation involved the tile setter often being late or absent from work.
• Got into disagreement refused to speak with manager and asked to leave.
• Employee asked if he was being fired manager said no.
• Employee did not return to work site and requested record of employment, it was assumed that he had resigned.
• Decision made it a point to note that the judge accepted that he was not credible and therefore it could be interpretted that he quit.

Strategic Quitting: The Dip

• Seth Godin says pushing through can lead to extraordinary results if you are in the job in his book.
• Switching jobs might be a solid decision if your relationships or family life are being affected.

Employee Concerns for Leaving Place of Employment

• Plan an exit strategy in case of a workplace overhaul.
• Proactivity needed in cases of move, restructuring; updating resume and building a network can help be prepared.
• Pinpoint triggering factors if waking up and going to work fills you with dread such as co-worker conflict.
• Is the job boring? This helps determine what solution suits best
• May be the right time to leave when feeling disengaged.
• Self-assessment of jobs identity and purpose is key; it's also beneficial to pinpoint long-term goals.
• Explore why they're unavalible because often employers are open to employees learning about additional responsibilities.
• Leave immediately, if there is physical or sexual harrassment or unethical activity.
• Leaving can be the right thing if you want to start a business.
• Make a business plan and have your finances in order to make the leap.
• Do not burn bridges.
• Demonstrate experience and maturity for future interviews.
• Negotiating skills will be enhanced and job search can be less emotionally challenging.
• Check financial health, can one survive the number of days without a source of income.

Robinson's Case

• Employers should not treat any of the events as if a long-service employer quits his job
• Cooling-off period must be given as well

Alberta Requirements for Giving Notice

• Employees generally must provide advance written notice of resignation when working over three months.
• Situations in Alberta requires that the notice be given
• Employer has to pay the employee for the wages that would have earned at regular hours if employee provides minimum notice.

BC Requirements for Giving Notice

• BC has no statutory requirement for employee resignation notices.
• Employers should accept resignation but advise payment through notice period and non-attendance.

Wrongful Resignation Details

• Under common law, employee and employer have obligations for reasonable notice which must be followed in the applicable labor legislations.
• In general employers avoid suing employee for failure to privide notice
• In case of expert and essential roles employer is more than welcome to award damages during the failure to resignations.

Exit Interview Benefits

• Interviewing resigning employees can be advantageous such as:
• Gives a opportunity for "competitive intelligence" on companies offering better incentives (DiFlorio, 2012).
• Company property will be returned
• Employer offers obligations
• A chance to gather feedback

Abolition of Mandatory Retirement at Age 65

• Retirement is usually 65 due to public pension
• All providences have eliminated the age for employees that are over 65 years of age or older.
• Effective December 2012, the Government of Canada repealed mandatory retirement for employees governed by federal human rights and employment legislation

Prohibition Against Age-Based Discrimination

• Maintain a plan for preventing age-based discrimination if it stands as being an official bonafide retirement plan.
• Bona fide occupational requirement must be shown.
• Test must be satisfied by showing policy has a rational connection to the job/implemented efficiently.
• Be flexible to employees without creating undue hardship.
• British Columbia v BCGSEU Meiorin case: under the test applies to the BFOR defence in all jurisdictions across the country, the employer must show not only.

Implications of Retirement on Employees

• Retirement is a matter of choice instead of a policy by employers for many issues; therefore the effects of the aging must be considered
• A legal obligation is a a must in this instance the aging can be expected to determine how able many employees meets the demands.

Performance Management for Employers with No Bona Fide

• Document the reasoning for why you're terminating an employee that is over 65 for possibly the wrong reasons.
• Human rights can award damages if something like that happens.
• Must include breach of law or any other possible complaint.
• Benefit plans do limit for employees that are past 65 must follow the restrictions for employees over that age, can be claimed as discriminatory.

Benke v Loblaw Companies Limited, 2022 ABQB 461

• Loblaw instituted a masking policy for all employees and customers in 2020.
• Policy had exemptions for medical conditions, inability to use a mask without help, or reasonable accommodation under human rights legislation.
• Benke sought an exemption based on an undiagnosed medical condition without the physicians support.
• Non-compliance lead Loblaw to put the employee on indefinite unpaid leave.
• The employee claiming of constructive dismissal as a result lead to:
  • No required accommodation was needed or given.
  • A mandatory mask policy was not deemed substantial.
  • No changes to job requirements only the mask.
  • Mandate was co-extensive
• A placed on unpaid leave did not breach the terms as the employee will work and be paid. Is what was ruled.

Unsuccessful Constructive Dismissal

• Are sometimes treated as a resignation through operating law.
• Traditional principles of constructive dismissal support this idea.
• Can be found resigned if there is unsuccessful might argue

* Bru v AGM Enterprises Inc, 2008 BCSC 1680

• Facts were that employee, Bru, worked at the defendant’s deli market for two and a half years before her dismissal.
• She claimed that she had been harassed by her co-workers to the extent that she ended up staying home from work for several days and eventually indicated she quitting the job.
• Relevant Issues:
• Dismissal to be either a resignation or wrongful.
• Whether damages for mental distress entitlement.
• Canada Inc v Keays regarding employers obligation.
• Decision for not apparent reasons.
• Bru had to provide reasons on why she didn't resign with proper evidence to support the claim.

English v Manulife Financial Corp, 2018 ONSC 5135

• Found that Employees must first form the intent to resign.
• Employee indicated that she indicated her supervisor to be retiring at the end of the year so that Manulife can convert any information.
• Manulife changed its decision because she was going to retire. Relevant issue whether the employee was going to rescind for lack of the intent to resign. -Decision:
  • That found that Employee's evidence was of clear and unequivocal statement or resignation.
  • Reinstated the fact that Employee stated that her service was willingly and freely given.
  • Therefore Manulife was only bound to honor the terms stated within her resignation.

Corporation of the City of Calgary v Calgary Police Assocation [sic], 2021 CanLII 13286 (AB GAA)

• Found that employee's intent to resign is not met.
• Was a police officer of 11 years, was denied promotion several times, applied for unsuccessful oppurtunity.
• Legislation for special pension plan, forced members that if they did not take the package they were going to have to resign.
• Resigned, the Chief of CP s received the request.
• Decision for what he heard there must not only be evidence that employee's want to leave.
• Therefore not provoke the out of a outburst, it was the decision he decided he made was the most informed and honest option.

Robinson v Team Cooperheat-MQS Canada Inc

• An employee who is clearly distressed should not have their words of "I quit" immediately taken as a resignation
• A cooling-off period must be given to allow the employee to collect themselves

Dismissal with Cause

• Dismissal with cause involves determining just cause for dismissal under common law.

Dismissing an Employee for Just Cause in Canada

• Under common law in Canada, an employee can be dismissed summarily only for just cause without advance notice or pay in lieu.
• All other terminations need reasonable notice or pay in lieu.
• This does not apply if there is an enforceable term in an employment contract establishing an alternative notice requirement.
• Dismissal without just cause and without notice or pay in lieu leads to a lawsuit for wrongful dismissal.
• Just cause means the employee breached the employment contract in a fundamental way.
• Employer no longer has the common law obligation to provide reasonable notice of termination or pay in lieu.
• Just cause does not simply mean that an employer had a good reason, or a need to downsize, for dismissing an employee.
• Establishing just cause is a very high standard for employers to meet.
• Existence of just cause is decided on a case-by-case basis.
• A court will determine whether an employer demonstrated just cause, assisted by legal precedent from previous cases with similar fact situations.
• The determination is made after a wrongful dismissal action is brought by a dismissed employee.
• At the time the employer makes the decision to dismiss the employee, it can be uncertain that the employee's conduct constitutes just cause under the common law.
• Employers can review previous similar cases that have dealt with misconduct or incompetence to see whether they can successfully defend a wrongful dismissal action.
• Taking measures such as documenting efforts to support the employee's ability to perform their job and using progressive discipline and ensuring procedural fairness can improve chances of defending a wrongful dismissal
• Courts primarily look to past wrongful dismissal lawsuits as precedents for determining just cause.
• If there are few such decisions involving a similar kind of misconduct, courts will also look at labour arbitration decisions.
• Arbitrators usually apply similar standards when they apply the just cause provision found in most collective agreements (“Common-Law Doctrine,” 2004, at 3200).

Onus of Proof

• Courts are reluctant to find just cause, because the result is severe for the employee and means dismissal without notice or pay in lieu.
• The burden of proof lies on the employer to show, on a balance of probabilities, that the employee breached the employment contract in a fundamental way.
• This requires satisfying the ultimate decision maker that it is more likely than to have not occurred based on the available evidence.
• The analysis of just cause is contextual and depends on the particular circumstances of the case.
• In Alberta v Alberta Health Services, the Alberta Arbitration Board determined that health employers/employees are expected to act with “public trust” on behalf of potentially at-risk patients.
• A respiratory therapist (RT) at Chinook Regional Hospital in Lethbridge used a work computer to view pornography, despite being aware of a clear policy against it.
• The RT admitted to a lifelong craving for pornography and a fixation with breasts, even though his job required daily examinations of female patients in a state of undress or partial undress.
• The Arbitration Board ruled that his obsession was not amenable to progressive discipline.
• The concern was discomfort for female patients knowing their RT suffered from addiction.
• The hospital terminated the therapist for compromising its professional integrity.
• The Board agreed a fundamental breach of the bond of trust had occurred and the RT's grievance was dismissed.
• Just cause is an “all or nothing” proposition.
• Employers must provide reasonable notice or pay in lieu under common law if an employee's misconduct doesn't meet the high threshold for just cause.
• There is no reduction in the notice period if an employee did something wrong but the misconduct wasn't serious enough to warrant immediate dismissal.
• The punishment must be proportionate to the level of misconduct.

Proportionality and the Contextual Approach

• Courts have increasingly recognized the unequal relationship that exists between employers and employees, especially at dismissal.
• Courts have adopted ways to protect employees, and have increasingly recognized the unequal relationship that exists between employers and employees.
• Proportionality dictates that any sanction imposed must be proportional to the conduct it addresses.
• A few acts of misconduct, such as theft, assault, or a significant instance of sexual harassment, may justify summary dismissal, even if occurring only once, because they go to the core of the employment relationship.
• Most other types of misconduct/performance incidents must occur more than once to constitute just cause.
• Employers must meet a very high standard to support the notion that the employment relationship is irreparably broken.
• Relevant evidence to that determination includes single instances and/or series of incidents.
• In Mount Royal University v Mount Royal Faculty Association, the arbitrator considered dismissing Dr. Frances Widdowson amid investigations and a “Twitter War.”
• Other factors including her controversial views on Indigenous policy, academic freedom, and freedom of expression were considered.
• Despite no complaints about her work quality and having university support, Dr. Widdowson faced multiple investigations and claims of bullying, harassment, and discrimination

Widdowson's Grievance

• In summer 2020 a “Twitter War” erupted between Widdowson and other faculty members.
• Allegations of harassment and bullying were made both against and by her.
• The university hired four external investigators to sort through the complex situation.
• Investigations found tweets constituted harassment, similar to posts from six other faculty.
• Six faculty received letters of warning; Widdowson suspended for two weeks in May 2021.
• Investigations determined Dr. Widdowson's activities contributed to a toxic workplace and her complaints against one faculty member were malicious, vexatious, and made in bad faith.
• She was dismissed in December 2021.
• Arguments from MRFA argued that she was dismissed for views about Indian residential schools instead of actions.
• Academic freedom a fundamental tenet protected at all Canadian universities.
• Following a 30-day hearing, arbitrator David Jones issued 300-page decision.
• He agreed that Dr. Widdowson had bullied and harassed co-workers, filed a malicious complaint to "carry on the fight”, and contributed to a toxic workplace.
• Investigations were thorough and thoughtful, the evidence overwhelmingly showed Dr. Widdowson significantly contributed to the malignant environment.
• Academic freedom cannot be a shield against harassment.
• Discipline was warranted and academic freedom was not a shield against harassment, but dismissal was not proportionate.
• Short time passed between initial suspension and dismissal.
• Some broader allegations were dismissed.
• Continuing employment with the university deemed unviable.
• Adverse effect on relationships with colleagues.
• Refusal to recognize harassing communications impact.
• Lack of remorse.
• Reluctance of co-workers to see her return.
• Persistence that none of her tweets constituted harassment.
• Hostility toward the university and colleagues in post-termination blog posts.
• Re-deploying the hearing set up to distance her from witnesses; admonishment not to address them.
• Refusal to accept that collective agreement determines employment terms and criticism of the Faculty Association was noted.
• The friction between her and other colleagues went beyond harassing social media communications.
• Implacable views and attitude made reinstating her not a "lasting and final solution.”
• Dr. Widdowson was awarded $267,725 plus prejudgment interest; no damages.
• Dismissal cases can now adopt a contextual approach.
• Courts now consider nature and seriousness of an alleged offense within the entire employment relationship.

Contextual Approach Factors

• McKinley v BC Tel, set relevant contextual matters relating to dismissal cases.
• Employee's length of service, performance and disciplinary history, and any mitigating circumstances.
• Personal factors or actions of the employer that could have influenced the employee’s conduct.

Procedural Fairness, Good Faith, and Fair Dealing

• Employers should improve chances of demonstrating just cause by following certain rules of procedural fairness.
• It is generally deemed that there has been a timely investigation by a qualified professional.
• Employee should know that they're under investigation, and have any findings.
• Employee should be allowed to respond to accusations and findings.
• Employee should have reasonable explanation for actions.
• Employer needs to follow their allegations in good faith through investigation.
• Employers also have a general duty of good faith and fair dealing when considering termination of an employee’s contract.
• Employer has an obligation to be honest, reasonable, and forthright with their employees.
• Termination due to investigation or performance has to be done in good faith, and its reasons were not for underlying motives.

Set Up for Failure and Wrongful Dismissal

• A decision by the Supreme Court of British Columbia in Chu v China Southern Airlines Company Limited highlights how employers need to make sure the charges are truthful.

Improper Conduct

• China Souther Airlines recruited Chu to help establish a office in Vancouver.
• Responsible for building relationships and business strategies.
• New manager created issues and treated Chu poorly.
• Reduced salary and placed into low wage job with the intention of firing.
• Courts established that the new manager never gave Chu training and a description on new position.
• Chu sued and the results was in his win.
• Stated CSA breached it's fairness doctrine.
• CSA had engage in setting Chu up to fail.

Result

• $208,083 dollars were due.
• Nicole Toye is an expert lawyer in B,C that said employer should not allege false cause because they could get in trouble.
• An incident has to rise to level of fair cause and employer must be suitable for providing a safe working environment.

If the Misconduct is Substantiated

• The sanction has to be a balance of proportionality between the misconduct.
• Ex)
• Conduct has to be deliberate and there has to be a previous judgement.
• misconduct is judged in the realm of service.
• if there are external factors that cause a potential bias, it must be considered.
• see how employee respondes.
• It can help them change their behaviour and mitigate their circumstances.
• Contextual approach can't just be on the employee and misconduct also look at how did the employer handle the situation.
• They can also rely on if they lied to find just cause.

Obeng v Canada Safeway Limited, 2009 BCSC 8

• Assistant manager raised the suspicions of theft by fellow employees.
• Obeng became upset and denied allegations when asked for a statement by investigators.
• Court found just cause.
• Admission of a grocery basket in question caused wrongful termination claim to subside. -Obeng would be considered to be breaking the company standard by denying that the basket exists.

Stating Grounds of Dismissal

• You can not prevent employer to take back their standing by stating its ok to switch stances
• Found that grounds differ from those at the time of dismissal.

Letendre v Deines Micro-Film Services Ltd, 2001 ABQB 26

Facts

• Letendre worked as VP.
• Was terminated for insobordination and fraud.
• Deines learned about submission to claim for a laptop insurance and called just cause.

Results

The judge was applied genral standard for the reasons

• more senior and employee is its that more likely it will be a justification.
• relation to the employees duty.
• Dishonest conduct can almost always justify dismissal
• Honesty important.
• Therefore was an unfit position of trust and the cause for dismissal was granted

Without Prejudice

Sometimes an employer dismisses an employee for cause but still desires to provide them with a sign of goodwill The situation stated to clarify payment to the payment A goodwill payment allows avoidance of the litigation.

Employer cannot recharacterize later as culpable

Was discharge after workplace bullly investigation was over an long period of time to collect the details Employer suggested had cause based on the termination and to to determine has reasons Court said employer knew what it inteded not allowed to use grounds for dismissal Entitled to 14 more months of pay

Condonation

Employer needs to be really careful about the misconduct Condonation happens when the misconduct is allowed to last for a period of time Cant file two years later Courts can consider resonable time to repond must know the natural extent to make it accountable forconding.

Principles Pertaining to Dismissal for Just Cause

• Listing of standards
• Employer must inform employee of responsibilities and restriction from employer.
• To be warned .
• Multiple charges can warrant if some reasons cant stand alone.
• Errors of judgement can not be a factor.
• Public jobs higher standards.
• abuse of misconduct can be grounds.
• Obey a command wilful needs defendant.
• May be based with ground only known after but misconduct doesn't count.
• Confict may cause problems.
• guide lines that don't violate the law counts.
• sick and absence.
• Neglecting an element and more criminal conduct and costs

UnderCommon Law

Just Theft of insubordination etc. More common disonehestion insulalation incomplatbilty harmful off duty conflic Absences sexually harrasment Abuse Incompotence

Absenteeism and Lateness

• There are two types of absenteeism which are culpable(Bad) and innocent and are treated differently under the law.

Culpable Absenteeism

• Culpable absenteeism involves attendance for reasons or for reasons beyond their control this is often seen in blameworthy absentee .
• Entitled to be discplinary measure for tardiness however a long case usually states in the fact of progressive discipline.
• Can the person make it that is good enough from for the business to exist.
• When reviewing consider this
• How long in the business -Started all of a sudden
• How often lateness or disengange. -reasons for being unengaged . Harm the organization. Is it consistant and the rules are enforced.

Texs Coal

Kyle norman 26 near hintonalberta worked as a mine worker for 2007

Non-Absence

He should be attending more medical info and also call forman before being away. Hours were over average therefore a breach

New issue

Not sic every occasion July 15 sick to an accident had time off

Sept 26

Zoo when was drunken question did not do anything .

Octber 1st called in sick

October 2 reports they didn't show

said they will show with witness said he never see them but had an aperance of being drunken. oct 3 a party and told police at a midnight

high rates of adsncensteem

cannot be fully trusted

Albreta arbation board

not really of an problem from disease had problems there was some thing else people to party attitude. was found that he has not yet grownup

Innocent adbseensse

occurs while not a force May not impse diciple.

Human legislative act

if sick must accommodate otherwise and has to work There must be other details added.

Can't be a shift in direction

not to be able to make the act to not come to force .

Incidents

Human Rights

Does not really impact it

There Is The Following Decision

The right doesn't matter that it was more important the two actions

This

The courts have to have a relationship.

Facts

Prority will be looked at .

All the courts decisions

The right would be considered again

Intoxication

• Violation of the company and the the job is in the mix it is reasonable to find discplinary measure.
• An isolated incident would not constitute just cause .
• Ditchbum v landis is an actual case .
• there has to a consideration .

Single is note

• Contrx is not just relationship alone . Ditchhburn Facts, the employer and 27year of good work . Diffucty keeeping up Arrenged to say good bye to a buddy with beer . Drank at strippclub Altracation at parking lot of the company building. Was find cause violated code work Is this a reason Aged over 60 Long time served in office. Given benfiot doubt. Long after 22 month. Plus damages. Also added an extra two months of bad reference. Court Deciseison didnt take more notice then bad record Was the reason to find the job again to search. Despite the resutl the contating result if drink alone does not insulate finding just case with single results.

Dzi

Found that not having any results of long working there and results is bad enough because of seriousness.

• Does the intovtion Harm Business?
• How its treated all ready?
• The snesivivte can be the only results to do Does it follow any standards is there policy.