By Stuart Rudner
As regular readers will know, just cause (also known as summary dismissal) is one of my favourite topics within employment law.
I have written about the concept many times on this blog and spent years writing my book on the subject, You’re Fired! Just Cause for Dismissal in Canada. The book is updated twice a year, which forces me to stay on top of all of the court cases and arbitrations that consider whether an employee deserved to be fired.
These are often entertaining cases, and two recent ones seemed worthy of mention on this blog. In one, the employee urinated on a colleague during a drunken episode. In the other, a teacher assaulted a co-worker who she believed was having an affair with her husband. Just cause was found in one, but not the other.
In Gunville-McCallum and Ballantyne, Re, the complainant, a teacher, was dismissed after she verbally and physically assaulted a colleague. The complainant suspected her colleague of carrying on an affair with her husband, and sought revenge.
The incident was serious enough to be reported to the RCMP.
Gunville-McCallum was charged and later pled guilty to common assault. However, in the context of her employment, she argued she should not have been dismissed, and that a three-month suspension would have been appropriate.
The arbitrator agreed. As I have said on many occasions, just because an employee engages in misconduct, it does not necessarily mean they can be fired. The employer must assess the egregiousness of the offence and all relevant factors, such as the employee`s length of service, disciplinary record, the nature of the position and degree of trust required, and any mitigating circumstances. This is known as the contextual approach, and is required whenever summary dismissal is considered.
In this case, the arbitrator considered Gunville-McCallum was a relatively long-term employee, having about 12 years of service at the date of termination with an unblemished record. From all accounts, she was an excellent employee. This was one isolated incident of aberrant behavior that was clearly provoked by marital difficulties.
Gunville-McCallum knew she needed help after the incident. She immediately made an appointment to see her doctor and engaged a mental health therapist. She was prescribed anti-depressants to deal with her depression and anxiety. She started counselling on Jan. 18, 2010, and was still seeing the therapist at the day of the hearing. She also enrolled in an anger management program.
Assault with a gross weapon
By way of contrast, Edmonton Police Service v. Furlong, was an appeal by the chief of police of a decision of the Law Enforcement Review Board. An officer, Furlong, was charged with four counts of discreditable conduct, all arising on the same night while the he and the complainant officer were at a police safety training course. The charges were that:
•he urinated on another officer who was lying in bed
•he pushed that same officer into the wall while walking past him
•he used profane, abusive or insulting language about that same officer
•he confined that same officer to his assigned room and would not let him leave.
The offences happened over a 15 minute period, after the respondent and others had been drinking and the complainant had gone to bed.
Initially, the board overturned the dismissal and imposed a two year reduction in rank. However, the court disagreed. In considering the appropriate penalty, the court took into account the special nature of a police officer’s employment and that police officers are, in many respects, subject to different standards of conduct and a higher level of workplace discipline than ordinary employees. The court found summary dismissal was warranted.
There are dozens of cases every year where courts and arbitrators consider whether or not an individual deserved to be fired. As I often say, “just cause is not a lost cause.” In many cases, the dismissal is upheld. However, employers must proceed cautiously and with consideration of all relevant circumstances.
Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at email@example.com. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.