Termination under the Canada Labour Code is very different than the Employment Standards Act in Ontario. Employers often assume that in order to dismiss an employee, they just have to pay them the proper compensation. However, this assumption is based on the Ontario provincial legislation called the Employment Standards Act and is not applicable for federally regulated employers.
Under the Canada Labour Code, an employer can dismiss an employee who has worked for the federally regulated employer for 0-3 months without notice or just cause. If an employee has worked for the federally regulated employer for a period between 3-12 months, then the employer may terminate without alleging just cause by providing 2 weeks notice or pay in lieu of notice.
In order for a federally regulated employer to dismiss an employee that has been continuously employed for 12 months or more, the employer can only do so if they are able to prove just cause. A just cause termination means that an employer has terminated an employee on the basis of very serious misconduct, or a series of inappropriate behaviours that have not been corrected by the employee after repeated warnings. The reason for the termination must be so egregious that it goes right to the heart of the employment relationship and creates irreparable harm. Just cause is reserved for the worst workplace misconduct and is it very difficult to prove.
For federally regulated employers, the only way to prove just cause is either one serious incident that one can prove just cause or by properly applying progressive discipline. Progressive discipline is the process of applying discipline of increasing severity as it relates to an employee's inappropriate behaviour. The goal of progressive discipline is to provide opportunities for employees to become aware of, and correct any inappropriate behaviour. Progressive discipline is used to help employees improve, and provides employees with a chance to make changes in their behaviour in order to retain their employment. This process should be outlined within the employer's policies and usually looks something like this:
- Verbal warning
- Written warning
- Suspension (paid or unpaid) (1-5 days)
- Termination
This is not a "three-strikes-you're out" type of system as it is up to the employer's discretion to apply the steps to each specific occurrence of misconduct which may not follow the order set out above. It is important that the step of progressive discipline that is applied is proportional to the severity of the misconduct.
The employer must apply progressive discipline correctly in order to prove just cause. If the employer provides multiple warnings and suspensions but has no record of such action, then the employer will not have evidence in a court of law to show that they did indeed apply progressive discipline and that they provided chances for the employee to correct any misconduct. Documentation of progressive discipline is key.
If an employer cannot prove just cause, then a termination will be considered a wrongful dismissal. Wrongful dismissals can be very costly for employers and hurtful for those involved. It is important to properly apply progressive discipline and always seek legal advice before terminating an employment relationship.
At Suzanne Desrosiers Professional Corporation, we can assist you on how to properly apply progressive discipline so to be able to substantiate a just cause termination if required at some point in the future.Such training will be available shortly at the SDLaw E-learning and Training Centre. You can access this centre on our website. We can also offer assistance in drafting your Human Resources policies which must now meet the requirements of Bill C-65 and Employment contracts. If you have any questions, please reach out to our firm. We look forward to helping you navigate workplace law in your organization.