If employees have sufficient warning of the consequences of certain misconduct, can they be automatically dismissed if they're guilty of it?
Question: Are zero tolerance policies enforceable? If an employer makes it clear to employees that a certain type of misconduct will result in immediate dismissal, can that misconduct constitute just cause?
Answer: Yes, zero tolerance policies are enforceable as long as the adjudicative body (whether it is a court or an arbitrator) is satisfied that the breach of the policy occurred and the employee’s conduct constituted just cause for dismissal. In other words, just because the employer’s policy says it is so, it does not necessarily mean it is. The well-known KVP decision, Lumber & Sawmill Workers’ Union, Local 2537 v. KVP Co., contemplates that an employer can create offences for which discipline up to discharge are appropriate but ultimately the arbitrator has to be satisfied that the policy was “reasonable.”
In the non-unionized environment, there are cases where an employer has, through its own policies, said that certain culpable employee behaviour constitutes just cause for dismissal but a court has not agreed. Take, for example, Butler-Lynch v. Dr. Roz’s Healing Place, in which an employee was dismissed under a zero tolerance workplace anti-oppression policy for comments made to colleagues working at a women’s shelter. Although the court acknowledged the need to implement policies that discourage these behaviours, and specifically noted that termination on those grounds was acceptable in some cases, it stopped short of acknowledging just-cause dismissal in this case. Although the policy was good-intentioned, the behavior was not meriting of such severe punishment; the judge was of the opinion that dismissal was not warranted given the insubstantiality of the plaintiff’s actions and because the plaintiff had no history of similar behaviour.
Nonetheless, if an employer considers that some type of conduct merits discharge and such conduct would not be tolerated, the fact that the employer creates a policy to that effect is of tremendous assistance to the employer if that incident occurs. The policy puts the employee on notice of what is expected and signals the consequence for the breach. That has strong equitable value. Further, in the non-unionized environment, it could be said that the policy is incorporated into the employee’s employment contract and therefore even if the court might not think it is worthy of zero-tolerance, the parties have agreed that it is and therefore the parties have effectively agreed that a breach constitutes just cause.
For more information see: • Lumber & Sawmill Workers’ Union, Local 2537 v. KVP Co. 1965 CarswellOnt 618 (Ont. Arb.).
• Butler-Lynch v. Dr. Roz’s Healing Place, 2007 CarswellOnt 8582 (Ont. S.C.J.).
