Prior warnings the answer
Exclusive to Canadian HR Reporter from Rudner Law.
Consider this: You have an employee engaging in disruptive behaviour. You dismiss the employee for cause. The employee sues you for wrongful dismissal.
Does it matter whether you provided warnings to the employee about their behaviour prior to dismissal?
Or can you dismiss for cause simply based on their alleged misconduct?
The Cumberland Case
In Cumberland v Maritime College of Forest Technology, 2023 NBKB 065, the court found that a 53-year-old academic instructor with seven years of service was wrongfully dismissed for cause as he had not been given prior warnings about his alleged misconduct. The court awarded him seven months of pay in lieu of notice but found there was no basis to award additional damages as the employer had only been “sloppy” as opposed to being “egregious”.
Although Cumberland argued he was dismissed for his views on glyphosate which were “unpopular with some players in the New Brunswick Forestry Industry”, the court did not agree. Instead, the court found that Cumberland was terminated from his employment “as a result of his attitude and behaviours which rendered his continued employment impossible.”
So why did the court find there was no just cause for dismissal?
The court held that the employer failed to provide Mr. Cumberland with “warnings as to the real jeopardy of his position prior to his termination”, which is why the employer could not establish just cause for dismissal. The court concluded:
“ In the event Mr. Marshall or Mr. Davies had provided clear warnings regarding his conduct to Mr. Cumberland…they would have been successful in convincing this Court that Mr. Cumberland was dismissed for just cause…
“ … Mr. Cumberland was only put on notice of the jeopardy he was in at the time of his termination.”
Common law entitlement
Given that just cause could not be established, Cumberland was entitled to a severance package. Since there was no enforceable employment agreement limiting his entitlements upon termination, he was entitled to reasonable notice at common law.
The court found no reason “to deviate from the common law standard of one month per year of service” because while Cumberland had “specialized training”, he also had “a diverse background and a wide variety of skills”; in fact, he had applied for other positions prior to his dismissal and was retained by a political party within weeks of his dismissal.
The court thus awarded him seven months of pay in lieu of notice.
Further, Cumberland sought moral, aggravated and punitive damages. The court found there was no basis to award such damages. The court reiterated that “the case law is consistent that aggravated and punitive damages should only be awarded in the most exceptional of wrongful dismissal cases involving truly egregious conduct on the part of the employer.”
The court concluded:
“ In this case, the worst that can be said of the employer is that they ‘were sloppy” in the manner they failed to address issues with Mr. Cumberland in the last several months of his employment. However, I can identify no conduct that would be considered as “egregious” or in “bad faith’...
“I reject the claims for moral, aggravated, and punitive damages.”
This decision gives employers an important reminder: courts will often expect some progressive discipline prior to dismissal for cause; otherwise, it will be an uphill battle trying to establish just cause for dismissal, absent extenuating circumstances.
Employers would be wise to seek legal advice prior to dismissing an employee for cause, as the threshold to prove just cause is quite high. However, as Stuart Rudner, author of You’re Fired! Just Cause for Dismissal in Canada says, just cause is not a lost cause.
Nadia Zaman is a senior associate at Rudner Law in Toronto. She can be reached at (416) 864-8500 or [email protected].