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EMPLOYMENT LAW
Dec 16, 2014

Word of warning

Employers must give employees plenty of warning and a chance to improve if they want to terminate without reasonable notice
    

By Jeffrey R. Smith

A fundamental concept of employment law in Canada is that of just cause. It’s a concept designed to help offset the imbalance of power in the employment relationship. Much of employment law is based on the idea employees hold most of the power, and in many ways they do — they control the compensation, working conditions and don’t necessarily need the employee as much as the employee needs them.

Someone’s employment is part of her identity as well as her livelihood so if the employment ends, it can be quite an upheaval in someone’s life. That’s why employers, if they want to terminate the employment of a good worker, have to give reasonable notice or pay in lieu of notice to help ease the upheaval and bridge the gap until the worker finds other employment.

If employers want to get out of providing reasonable notice, they have to have a good reason — such as misconduct or some other legitimate reason that irreparably damages the employment relationship and provides just cause for dismissal.

Not surprisingly, just cause isn’t easy to prove. There has to be a really good reason why an employee is let go without reasonable notice. And often, even if there is, the employee has to be given proper warning that her job is in danger and given a chance to right her ways. This is where employers sometimes get themselves in trouble.

B.C. case highlights challenges

Such as an employer in British Columbia that dismissed a communications manager for controversial social media posts and a blog containing profanities that compared her boss to an abusive parent. All the posts were on the employee’s personal accounts, but were seen by many staff members and others in the industry, embarrassing the employer. The communications manager was fired for the inappropriate online content and the employer claimed the employee had been told some of the language and items she posted were inappropriate.

However, a court found the informal meetings the employee’s boss had had with her regarding social media content couldn’t be considered formal warnings, since at no time was the employee told her job could be in jeopardy if she didn’t change her ways. The first formal warning was the dismissal, and the employee claimed she would have tried to improve if given the chance. In fact, the employee had had no formal performance evaluations, no written employment agreement and the employer had no official social media policy.

The court noted the employee had also received raises during the time the employer was supposedly growing concerned with her social medial conduct, which let the employee think she was doing a good job.

The employee — who had worked for the employer for less than two years — was awarded five months’ pay in lieu of notice and the employer was given a lesson in proper disciplinary procedure. See Kim v. International Triathlon Union, 2014 CarswellBC 3435 (B.C. S.C.).

Unless an employee’s misconduct is extremely serious and breaches the employment contract, just cause can’t usually be proven without a pattern of progressive discipline. Warnings, suspension, you name it — the employee needs to know when cause for dismissal is developing, or else it’s not so just in the end.

    
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COMMENTS
Mitigating factors
Thursday, December 18, 2014 11:21:00 AM by Jeffrey R. Smith
Every case turns on its own facts, and they type of warnings and the misconduct or cause for dismissal always depend on the circumstances. Sometimes it's easier for employers just to dismiss without cause and pay reasonable notice.

In cases where post-termination facts come to light, such as if an employee raises an issue of accommodation she didn't before, if the employer couldn't be expected to know the information then a remedy sometimes used is that the employee is reinstated but the employer doesn't have to pay any compensation for the lost pay up to the reinstatment.
Suspensions?
Thursday, December 18, 2014 11:14:00 AM by Bobbocio
Except in a unionized environment, suspension without pay is not open to an employer as a means of discipline, in my understanding at least. Or when there is a contract term otherwise of course.

In my office, despite having a team of lawyers working on every dismissal from the get-go, we still cannot guarantee that a termination will withstand arbitration, even in the most aggregious cases. There is often a case of... "well five warnings were good, but maybe the sixth would have seen improvement." "A mitigating factor is the employee had an undiagnosed learning disability that they are only bringing forward now." "(Upon pain of termination) during the arbitration the employee has decided to submit a written apology."