Just Cause Termination:
An employer can dismiss an employee for just cause when the employee's misconduct is so egregious that it causes a breakdown in the employment relationship. Employers beware! Just cause is very difficult to prove. This is because the degree of misconduct required to prove a breakdown in the employment relationship varies depending on the facts of each individual case. Moreover, if an employee believes that their termination was not justified in the circumstances, they can bring a wrongful dismissal claim (provincially regulated employee) or unjust dismissal claim (federally regulated employee) against their employer.
Just cause can be used as a defence to an employee's wrongful dismissal claim (provincially regulated employees) or unjust dismissal claim (federally regulated employees). When it comes to wrongful dismissal claims and unjust dismissal claims, the court will consider the nature and extent of the misconduct, the surrounding circumstances of both the employee and employer (the employee's age/position held, the employee's disciplinary history, the employee's level of seniority, the employer's relevant practices/policies, etc.), and whether termination was warranted in response to the employee's misconduct. If the judge determines that the employee's misconduct was so egregious as to warrant termination, the employee's claim will be dismissed. If however, the judge determines that the misconduct did not amount to a breakdown in the employment relationship and termination was unwarranted, the employee will be entitled to damages, which can prove to be very costly for the employer.
Case Law Example:Hucsko v A.O. Smith Enterprises, 2020 ONSC 1346
The case of Hucsko v A.O. Smith Enterprises, 2020 ONSC 1346, concerns a wrongful dismissal claim (provincially regulated employee). Mr. Hucsko, the Senior Product Designer was dismissed at the age of sixty (60) after twenty (20) years of employment for just cause when he refused to apologize to a co-worker after being told to do so by his employer.
On June 28, 2017, Ms. Niazi, a co-worker, made a complaint to the Human Resources Manager about Mr. Hucsko regarding four (4) incidents in which she found that Mr. Hucsko had acted inappropriately towards her. They are:
- 1. When discussing a manager's meeting, Ms. Niazi informed Mr. Hucsko that everyone had a good time, to which he responded by asking Ms. Niazi if she had danced on the tables. Ms. Niazi stated that she informed Mr. Hucsko that his comment was inappropriate. Mr. Hucsko later testified that he had asked if everyone was dancing on the tables, meaning to suggest that everyone had a lot of fun
- 2. When discussing the next steps in a project. Mr. Hucsko said that Ms. Niazi needed to go and sit on her male co-worker's lap and ask him nicely to provide her with the information that she needed. Ms. Niazi stated that she informed Mr. Hucsko that his comment was inappropriate. Mr. Hucsko later testified that his comment was not sexual in nature rather; he had meant that she should sit on her co-worker until she got the information that she needed from him.
- 3. On June 19, 2017, Mr. Hucsko and Ms. Niazi were having a discussion about gardening when he told her that any reason for her to bend over and go down on her knees was good. Ms. Niazi stated that she did not respond to Mr. Hucsko's comment and walked away. Mr. Hucsko later testified that he was suggesting that Ms. Niazi use a kneeling pad when gardening.
- 4. On June 26, 2017, Ms. Niazi made a comment to Mr. Hucsko about being at the top of the e-mail list to which he replied by saying of course you are on top, "you are getting pumped from under the skirt so you cannot stand anymore." Mr. Hucsko later testified that what he had said was a colloquialism from a 1970s movie. It means to praise someone or give someone a lot of credit.
- 1. Hucsko was sixty (60) years of age at the time of his termination,
- 2. Hucsko had worked for the employer for twenty (20) years;
- 3. Hucsko's position as Senior Product Designer was technical and specialized; and
- 4. There was only one other employer in Ontario that had employees who performed the same type of work as Mr. Hucsko.
The Human Resources Manager conducted an investigation concerning Ms. Niazi's complaint and found that Mr. Hucsko had made the comments as described by Ms. Niazi and that they amounted to harassment. As a result of these findings, Mr. Hucsko was required to take additional training and apologize to Ms. Niazi with the Human Resources Manager present. Believing that he had not done or said anything wrong, Mr. Hucsko asked for time to seek legal advice.
Mr. Hucsko's lawyer then sent a letter to the employer stating that Mr. Hucsko would participate in the training but that he was not prepared to make an apology to Ms. Niazi. After receiving the lawyer's letter, the employer suspended and subsequently terminated Mr. Hucsko for just cause. The termination letter stated that there had been an irreparable breakdown in the employment relationship based on his inappropriate remarks towards Ms. Niazi, his failure to show remorse for the comments made; and his wilful insubordination (refusal to apologize). Mr. Hucsko then brought a claim against his employer for wrongful dismissal.
Justice Taylor of the Ontario Superior Court of Justice pointed out that when an employee is terminated for just cause there must be a balance between the severity of the employee's misconduct and the penalty imposed. Justice Taylor held that Mr. Hucsko was terminated for serious and wilful insubordination (refusing to apologize) and not for comments that amounted to harassment. Justice Taylor held that Mr. Hucsko's insubordination was not egregious enough to cause a breakdown of the employment relationship. Justice Taylor then held that Mr. Hucsko had been wrongfully dismissed.
After concluding that Mr. Hucsko had been wrongfully dismissed, Justice Taylor went on to assess the amount of reasonable notice that Mr. Hucsko was entitled to under the common law. Justice Taylor looked at the following factors:
Having taken all of these factors into consideration, Justice Taylor ordered the employer to pay Mr. Hucsko twenty (20) months' pay in lieu of notice, being $187,000.00 plus prejudgment interest.
Take Away for Employers:
Employers beware! Just cause is very difficult to prove! As such, we strongly advise all employers to contact us before terminating an employee for just cause in order to avoid a costly mistake. We also advise the following:
- The Punishment Must Fit the Crime:
When an employee's misconduct is minor but consistent in nature (I.E. consistently showing up to work late, consistently leaving work early) the employer should impose disciplinary measures of increasing severity in order to correct the employee's misconduct. Examples include verbal warnings, followed by written warnings, followed by unpaid suspensions, followed by termination for cause. Please keep in mind that this is not a three strikes and you're out system. You want to be seen as providing the employee with every possible opportunity to correct his/her behaviour before you can properly rely on a just cause defence.
- Document All Disciplinary Actions:
We also strongly recommend that employers document all disciplinary actions taken against the employee (including verbal warnings) and that they be kept in the employee's personnel file. We also strongly recommend that when discipline is imposed that the employee be asked to sign an acknowledgement stating that they have received a verbal warning/written warning/suspension, that they have understood the reason(s) for the discipline being imposed, and that they are willing to change their behaviour or be faced with future disciplinary measures of increasing severity up to and including termination. When relying on a just cause defence, the employer must be able to prove that the employee, even after being giving all of these chances was still unable to improve his/her behaviour which led to a breakdown in the employment relationship.The best way to prove the same is by documentation.
- Be Consistent:
If the employer is aware of misconduct by one employee and does nothing, and later disciplines and/or terminates another employee for the same misconduct it is very unlikely that the employer will be able to rely on just cause defence. If the employer has overlooked certain misconduct in the past and now wishes to discipline such misconduct he/she will be required to inform all employees that future instances of said misconduct will be cause for discipline up to and including termination.
Avoid potential liability and costly mistakes by calling the office of Suzanne Desrosiers Professional Corporation today. Suzanne Desrosiers Professional Corporation is also pleased to offer training on harassment and workplace violence and progressive discipline either in-person or online via webinars and interactive online courses. For more information please do not hesitate to contact us at 705-268-6492.