Sometimes, cases are simple and there's no need to complicate them
May 16, 2016
By Stuart Rudner
Regular readers will know much of my time is spent writing about, speaking about and opining on the complexity of the laws regarding summary dismissal in Canada. Our firm always advises clients that dismissal should never be undertaken in haste, and in assessing whether just cause for dismissal exists, it is necessary to take a contextual approach and assess all relevant factors (See Dismissal for cause never clear-cut, What’s the deal with off-duty conduct?, Assessing Just Cause for Dismissal.)
As I explain in my book, You’re Fired! Just Cause for Dismissal in Canada, the alleged misconduct is never to be considered in isolation. Rather, factors such as the employee’s length of service, prior disciplinary conduct, the nature of her position, and any mitigating factors must be taken into account.
That being said, sometimes, cases are simple and there is no need to complicate them. It is important to remember that at its very basic level, the contract of employment is simple: An individual agrees to provide services in exchange for wages.
If he is unable to provide those services, then presumably his employment must end.
Often, we discuss this concept in the context of frustration of contract (Frustration of contract). Typically, that relates to an employee who is on medical leave, and there is uncertainty as to when she will be able to return. In such circumstances, specific medical evidence will be required to show there is no reasonable likelihood she will be able to return to work in the foreseeable future before the contract can be said to have been frustrated.
In other cases, however, circumstances may change and result in the employee's inability to carry out his duties. One example would be a truck driver who loses his their driver's licence. A similar scenario occurred and was considered by arbitrator Lorne Slotnick in Great Blue Heron Charity Casino and Unifor Local 1090 (re Kim Do and Darryl Vanderligt). The case involved two former employees; one was a dealer and the other was a table games inspector.
The award, which is notable for its brevity, confirmed that the grievors were dismissed due to the fact they lost their licences with the Alcohol and Gaming Commission of Ontario. Initially, both grievors had their licences suspended, and the employer suspended their employment. Ultimately, both employees had their licences revoked and did not appeal those decisions within the applicable time limits. As a result, the casino terminated their employment. Both employees grieved their terminations.
Having reviewed the facts, Slotnick's entire decision was as follows:
“Having heard the representations of the parties, I have concluded that in the circumstances of these cases, both grievances must be dismissed. This ends all matters arising from the employment of the grievors and the termination thereof.”
In this case, the analysis was simple and the arbitrator did not waste time making it more complicated. The case should provide some assurance to employers that while it can be difficult to dismiss an employee in Ontario, particularly for cause, some situations are straightforward and arbitrators will approach them in a common sense manner. If the individual is no longer able to carry out her duties due to loss of a licence, then she cannot continue to do her job and the termination of her employment will be appropriate.
Of course, many cases are more nuanced, such as the individual who is on medical leave. However, this case is a good example of one that did not need to be complicated.
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Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw
. He can be reached at firstname.lastname@example.org