Should there be absolute rules for terminating a worker for cause?
Story of Toronto police officer being charged with murder sparks reminder about the lack of hard-and-fast rules when terminating employment for cause
Feb 28, 2012
By Stuart Rudner
As I sat at my desk contemplating what to write about for my next post, a news update arrived in my inbox. The subject line read, “Toronto police officer charged with murder.”
My first thought, which I suspect was different than most people, was to wonder whether that would be just cause to dismiss the police officer in question.
Obviously, this is an extreme case and at this point there are only allegations. However, if those allegations are proven, then I would say the police service would have a strong argument summary dismissal is appropriate.
However, this situation is an opportune reminder of the fact there are no hard and fast rules regarding what constitutes just cause for dismissal. Canadian courts have confirmed over and over again that, in assessing whether just cause for dismissal exists, an employer must not only consider the misconduct or poor performance in question, but also adopt a contextual approach and consider all of the relevant circumstances.
These circumstances include:
•the nature of the employee’s position and the degree of trust required
•the length of service
•the employee’s prior disciplinary record
•the employer response to similar misconduct in the past
•the egregiousness of the offence and the need for proportionality
• the individual’s conduct when confronted with the allegations.
Ultimately, the employer must assess whether the employment relationship has been irreparably harmed, or whether it can be salvaged and some form of discipline short of dismissal would be appropriate.
I have often had people comment that surely some forms of misconduct will justify immediate dismissal, regardless of the circumstances. They often cite theft from the employer as an example. While I agree that if the CFO of a company embezzles millions of dollars, there would be a strong argument the employment relationship had been irreparably harmed.
I often point to a case from a few years ago where a construction worker took home a couple of bolts to use on a project he was working on at home. Or I ask about an office worker that takes home pencils so her child can do homework that night. When I ask whether those individuals should be summarily dismissed, the opinions become less clear-cut. All of the situations described above constitute theft from the employer. However, most people would agree summary dismissal would not be warranted in each case. And we have not even considered other relevant circumstances, such as the particular employee’s employment history.
I am taking this opportunity to remind everyone there are no absolute rules when it comes to summary dismissal, and also to invite comments: Would you like to see an attempt made to create some clear delineation regarding what will constitute just cause for dismissal? If so, what would you propose?
Stuart Rudner is a partner with Miller Thomson LLP in Ontario, specializing in 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 (905) 415-6767 or firstname.lastname@example.org. You can also follow him on Twitter @CanadianHRLaw, join his Canadian Employment Law Group on LinkedIn, and connect with him on Google+.
Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw
. He can be reached at email@example.com