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Nov 1, 2010

What does it take to get fired for cause? A lot

Finding just cause a frustrating prospect for employers, as the case of the truck driver who couldn’t cross the border shows

By Jeffrey R. Smith (

The bar for just cause dismissal is high — that’s one thing employers can always count on in the realm of employment law.

Whether it’s for misconduct or otherwise,  employers will find it’s not easy to fire an employee without providing proper notice. Employers can often find themselves asking the question: “What does it take to get fired?” More often than not, the answer is: “A lot.”

Termination of employment is also hard to do even if the employee is unable to do her job anymore. If the reason is because of a disability, the employer is obligated to try to accommodate to the point of undue hardship, which can be more extensive than the employer realizes, to avoid an accusation of discrimination. But what if the employee can’t do her job for a non-discriminatory reason, but it isn’t the fault of either the employee or the employer?

An Ontario trucking company was recently faced with this problem when one of its drivers was barred from entering the United States. He was a long-haul driver who was hired specifically to drive trucks to the U.S. and it wasn’t feasible to give him a temporary route within Canada because none were available. With no work he could do, the company laid him off until he could sort out his border issues. However, the driver refused a temporary layoff because it was going to take months to resolve the border issues.

The driver’s problems stemmed from criminal convictions decades earlier for which he had been pardoned. He hadn’t had any problems crossing the border before, and didn’t expect any because of the pardon. He was caught completely off-guard, but the company didn’t have much choice but to let him go for cause because there was no way it could accommodate him.

However, an arbitration board found that, despite the fact there was just cause for dismissal because of a legitimate frustration of the employment contract, the company was obligated to give the driver pay in lieu of notice. The driver had no culpability in the frustration of the contract because he had no control over the actions of the U.S. customs agency. So, despite the fact the employer was right in its ability to terminate him for frustration of contract, it was still had to give him notice as if there was no cause for dismissal.

It just goes to show that the bar for just cause can be so high, employees could be entitled to notice even when there is what would normally be considered just cause for dismissal where the employment contract is frustrated.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit

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Pendulum has swung too far
Monday, November 22, 2010 8:31:00 PM by jim Turner
I totally agree with Les that the courts and labour Arbitrators have got to the far end of the Pendulum and as a result our workplaces are suffering from high levels of absenteeism and poor productivity.
TIme for employers to push back
Wednesday, November 03, 2010 7:13:00 PM by Les Ross
The surprising thing for me in relation to this topic is why industry and the HR profession is so accepting of the situation as it has evolved.

The fact that, nowadays, companies seldom consider going down the 'with cause' route for fear of failing in subsequent costly litigation illustrates that there is no faith in getting a practical and realistic hearing of their case. Businesses take the pragmatic view that it is the lesser of evils to pay someone off, distasteful as it may feel in the circumstances, than face the risk and foibles of the Canadian employment judiciary.

I have no sympathy with companies who take cases to law when they have missed fundamental procedural steps through ignorance, laziness or stupidity (the only explanations). My problem is where a decision second guesses the reasonableness of the employer's actions in a practical sense.

In UK employment law, it was only open to the adjudicator to assess whether the employer had acted 'within a range of responses which would have been open to a reasonable employer'. It was not for the courts, it was argued, to place themselves 'in loco employer'.

In Canada today, and I suspect elsewhere, we have got to the far end of the pendulum swing where there appears a 'guilty till proven otherwise' attitude to business leading to a lack of equity in justice and a significant drain on already squeezed resources.

It's time to start pushing back and arguing that the Canadian Charter of Rights and Freedoms was never intended to facilitate the unacceptable breaches of common sense we witness all too often.

Les Ross