ELW4-Ch13 Dismissal With Cause.pptx

NOTICE Copyright Disclaimer This PowerPoint presentation is copyright protected. Individuals who have adopted the related Emond Publishing textbook for their course are granted permission to use this present...

NOTICE Copyright Disclaimer This PowerPoint presentation is copyright protected. Individuals who have adopted the related Emond Publishing textbook for their course are granted permission to use this presentation for instructional purposes only. Slides may not be distributed under any kind of Open Access style license, or website, or be duplicated, copied, sold, or otherwise exploited for any commercial purpose without Emond Publishing’s express written consent. Thank you. Copyright © 2020 Emond Montgomery Publications. All rights reserved. Employment Law for Business and Human Resources Professionals: Alberta and British Columbia, 4th Edition Kelly Williams-Whitt Adam Letourneau TJ Schmaltz Ryan Anderson Kathryn J. Filsinger Copyright © 2020 Emond Montgomery Publications. All rights reserved.  Employment Law for Business and Human Resources Professionals, 4th Edition CHAPTER 13 Dismissal with Cause Copyright © 2020 Emond Montgomery Publications. All rights reserved. Overview of Just Cause An employer must either: have just cause for dismissal, or provide reasonable notice or pay in lieu (dismissal without cause) “Just cause” does not mean having a good reason for terminating an employee Means “Did the employee breach the contract of employment in such a fundamental way that the employer is no longer bound by it?” Difficult standard to meet Decided case-by-case (supported by legal precedent) Copyright © 2020 Emond Montgomery Publications. All rights reserved. Onus of Proof The onus of proof is on the employer to establish, on a balance of probabilities, that the employee breached the employment contract in a fundamental way If the employer alleges misconduct of a criminal nature, the standard of proof is even higher—clear, cogent, and convincing Just cause is “all or nothing” No reduction in notice period or pay in lieu of notice if the discharge doesn’t meet the bar for just cause Copyright © 2020 Emond Montgomery Publications. All rights reserved. Proportionality and the Contextual Approach Any sanction by the employer must be proportional to the conduct The employer must respond in a measured way—looking at all alleged misconduct in the context of the overall employment relationship A one-time incident of theft or serious sexual assault may warrant summary dismissal Most misconduct or performance-related problems must occur more than once Contextual approach Nature of the misconduct Seriousness Context of the overall employment relationship Copyright © 2020 Emond Montgomery Publications. All rights reserved. Procedural Fairness Investigate thoroughly, promptly, in good faith, and in confidence Give the employee full opportunity to respond to allegations There may be a reasonable explanation There may be extenuating circumstances How the employee responds to the allegations matters Consider the misconduct Whether it was planned and deliberate Whether the employee exhibited remorse when confronted Assess the misconduct in the context of the employee’s previous disciplinary and performance records Copyright © 2020 Emond Montgomery Publications. All rights reserved. Stating Grounds of Dismissal An employer who dismisses an employee: Can do so without just cause Can later assert that it actually had just cause at the time of dismissal Can justify dismissal based on information acquired later Can change the grounds for dismissal from those originally alleged Dismissing with cause and still providing payment as a gesture of goodwill: Clarify in writing that the payment is “without prejudice” May help avoid litigation if similar to what the employee could be awarded Copyright © 2020 Emond Montgomery Publications. All rights reserved. Condonation Occurs when an employer who discovers misconduct or poor performance fails to respond within a reasonable time A reasonable amount of time is allowed to permit an employer to decide how it will handle the situation Copyright © 2020 Emond Montgomery Publications. All rights reserved. Just Cause Principles 1. The employee should know what is expected by the employer 2. The employee should be advised of the employer’s dissatisfaction and know their job is in jeopardy 3. Cumulative causes may justify dismissal without notice 4. Mere inadequacies or errors in judgment are not sufficient 5. Higher standards for positions of public trust 6. Abuse of authority may justify dismissal Copyright © 2020 Emond Montgomery Publications. All rights reserved. Just Cause Principles (cont’d) 7. Wilful disobedience may justify dismissal 8. May rely on grounds discovered after dismissal but not conduct after dismissal 9. Conflict of interest may justify dismissal 10. Employer is entitled to determine rules as long as they are not illegal, dishonest, or dangerous 11. Employees may be terminated for cause while on sick leave Copyright © 2020 Emond Montgomery Publications. All rights reserved. Just Cause Dishonesty The dishonesty must undermine the crucial element of trust in the employment relationship (McKinley v BC Tel) Insolence Normally, a pattern of insubordination or insolence must be shown Incompatibility Incompatibility is usually considered too vague to constitute just cause for dismissal Copyright © 2020 Emond Montgomery Publications. All rights reserved. Just Cause (cont’d) Off-duty Conduct If misconduct occurs outside the workplace, the employer must show that the misconduct harmed its business Conflict of Interest Implied duty of faithfulness or loyalty to the employer, conflict occurs where there is harm to the employer Sexual Harassment Progressive discipline is usually appropriate, but in serious cases dismissal for just cause may be justified Copyright © 2020 Emond Montgomery Publications. All rights reserved. Just Cause (cont’d) Culpable absenteeism is blameworthy absence from work Employer should consistently enforce its attendance policy and impose progressive discipline for both culpable absence and lateness Innocent absenteeism occurs when the reasons for the absence are beyond the employee’s control If the absences result from a disability, accommodate the employee up to the point of undue hardship If there is no realistic chance that the employee will return to work on a regular basis, dismissal may eventually be necessary Copyright © 2020 Emond Montgomery Publications. All rights reserved.  15 Just Cause (cont’d) Intoxication Progressive discipline is usually appropriate if an employee violates a policy prohibiting alcohol or drug use or intoxication and the employee: is not suffering from an addiction disability is not working in a safety-sensitive area Substance Use An employer cannot discipline an addicted employee for substance abuse The employee must be accommodated to the point of undue hardship If rehabilitation is unsuccessful, undue hardship may be reached at some point  16 Just Cause (cont’d) Incompetence There must be serious misconduct or incompetence, not mere displeasure The employee’s performance must be gauged against an objective standard If performance is grossly deficient, warnings and notice are not required The employer may not condone the behaviour and later rely on that behaviour to discharge the employee  17 Just Cause (cont’d) Incompetence (cont’d) The employer must establish: the level of performance required that the level of performance required was communicated to the employee that instruction and/or supervision was provided to help the employee meet the standard that the employee was given a reasonable period of time to correct the situation that the employee was incapable of meeting the standard that the employee was warned that failure to meet the standard would result in dismissal