Employees sometimes conduct themselves in an outrageous manner,
get fired, and insist that what they did was nowhere even close to
just cause for termination. Remarkably, sometimes they succeed and
the employer has to pay damages for wrongful dismissal.
Those types of cases make it difficult to advise either side in
a wrongful dismissal case as to what a court may or may not
consider to be just cause. Since the determination of just cause is
essentially a factual one, it is only in rare cases that a
definitive opinion can be given.
In my view, a definitive opinion could have been given to the
employee Plaintiff in a recent decision of the Court of Appeal
called Dziecielski v. Lighting Dimensions Inc. In that
case, the Trial Judge had dealt with a situation in which an
employee had an unblemished employment record until the day that he
was returning to work in a company vehicle which he was operating
without the required authorization at that time. He stopped for
lunch and drank four beers in one hour. He then got back into the
vehicle, lost control of it, destroyed it, and sustained serious
injuries. He subsequently pled guilty to having a blood alcohol
reading in excess of the legal limit.
At trial, the Judge found this to be serious misconduct and
notwithstanding his long term employment relationship and
unblemished record, concluded that his conduct constituted just
cause for termination.
To succeed in an appeal of a case like this, the appellant has
to show that the Trial Judge made a "palpable and overriding
error". In this case, the Court of Appeal saw no error at all,
let alone a palpable and overriding error.
It is difficult to see how anyone would have thought that a
Trial Judge might minimize the seriousness of this type of
behaviour simply because of an employee's long and unblemished
employment record. Fortunately, the Court of Appeal has now
delivered the message loud and clear. An unblemished record is a
factor for the Court to consider in assessing just cause, but it
will not override truly serious misconduct.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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