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Grin and bear it

Reinstatement of fired Quebec waitress reminds employers that firing a worker without cause isn’t a simple matter
Employment law

By Jeffrey R. Smith

Don’t like an employee? Then fire him. Employers that don’t want particular employees around shouldn’t have to put up with them, right? Well, kind of.

There are many protections in the legal arena that prevent employers from simply cutting workers loose with no recourse for those workers. If an employer fires a worker and doesn’t want to provide anything past that last paycheque, then legally there had better be a good reason for it, like dishonesty or workplace violence.

And the bar is high for that — there have been numerous cases where employers have truly considered an employee’s misconduct to be serious enough that it can’t see the employment relationship continuing, only to have a court or arbitrator find that, sorry, that employee deserves another chance to prove her worth. Just cause for dismissal can seem like a difficult thing to prove at times.

On the other hand, there shouldn’t be any worry about firing a worker for no other reason than the employer doesn’t like the worker or thinks he isn’t a good fit — otherwise known as dismissal without cause — as long as the employer does enough to help the worker bridge the gap to the next job — otherwise known as reasonable notice or pay in lieu of notice.

As has been well-established, the amount of notice to which a worker is entitled in a without-cause dismissal depends on several factors such as the worker’s age, the length of the worker’s tenure with the employer, the nature of the position, and the likelihood of finding similar employment before too long.

But if the employer doesn’t want to provide reasonable notice and wants to get rid of the worker right away, the reason for dismissal had better be good. And by good, that means better than not smiling enough, for example.

As reported by the Canadian Press, the CBC, and other news outlets, a waitress in a Victoriaville, Que., restaurant was fired in April 2016 for disrespecting a colleague when she waited on one of the colleague’s tables, according to her termination notice. However, this apparently wasn’t the only reason for the firing. At a hearing into the worker’s complaint for back pay, the restaurant’s owner added that she was dismissed for “her bad attitude and not smiling enough” over her six months of employment at the restaurant.

While poor performance and bad attitude can potentially be reasons contributing to the decision to dismiss a worker, they are unlikely to stand on their own without the worker being given a warning and a chance to improve the job she’s doing — especially if they’re not provided as reasons for termination on the termination letter to the worker.

As it turned out, the worker had requested back pay from the owner the day before her termination — the only employee to have done so — which led to the labour complaint. A Quebec labour tribunal ordered the restaurant to reinstate the worker and pay her more than $30,000 in compensation for lost wages plus interest — probably a lot less than pay in lieu of notice for a proper without-cause dismissal would have cost the restaurant.

When it comes to employee misconduct and just cause for discipline, termination is considered capital punishment in employment law, as it cuts off a source of the worker’s livelihood. It’s safe to say that not being liked by the owner and not smiling enough doesn’t warrant capital punishment against someone. It may feel good for an employer to get rid of a worker it doesn’t care for, but ignoring the high bar for establishing just cause may leave the employer without anything to smile about.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

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