In the recent case of Van Wyngaarden v Thumper Massager Inc., the Ontario Divisional Court confirmed that unless a dismissal is in bad faith, an employer is entitled to dismiss an employee during the probationary period without cause and without notice.
Just Cause for Dismissal?
This Fall, a daycare bus driver in Surrey, BC was fired after the police caught her using her cellphone while driving. The driver used her phone at a stop light to call one of the children’s parents to inform them that she was running late. There was one child in the bus at the time. She was fined $368.
Could she be dismissed for “just cause”? Or would her employer be obligated to provide her with a severance package? As is often the case, the answer is “it depends”.
In Ontario, there are two types of dismissal: with cause or without cause. Where an employer dismisses an employee with just cause, the employee is not entitled to notice, Termination Pay, or any compensation.
Just cause for dismissal may be found if the employee is guilty of serious misconduct (such as dishonesty, harassment, or insubordination) or poor performance. The employer has the burden of proving that it had just cause to dismiss. The standard is high: the employer must prove not only that the alleged misconduct took place, but also that the misconduct was sufficiently serious to damage the employment relationship to the point where it can no longer continue. Just cause for dismissal may be established based upon one serious incident of employee misconduct, or as a result of a series of incidents.
There are no absolute rules regarding when just cause will be found; even theft by an employee does not necessarily mean that the employer would have just cause for dismissal. The context is key.
Courts will apply a contextual analysis in order to determine whether the employer had just cause to dismiss the employee. First, the court will determine the nature and extent of the employee’s misconduct (note that the employer must establish that the employee committed the alleged misconduct). Second, if the alleged misconduct is established, the court will consider all relevant circumstances and factors, including:
- The employee’s length of service;
- The employee’s prior disciplinary history;
- The degree of trust required;
- The employee’s response when confronted;
- Any mitigating circumstances; and
- Any other relevant factors (such as the nature of the employer’s business, any relevant policies in place, and the employee’s position).
Here, the fact that the driver was a longtime employee would tend to work in her favour. However, the employee’s position within the company would likely work against her, since as a driver (especially one responsible for children), she would be expected to abide by the law and use the utmost caution. The employer may be able to show that her conduct, which violated the law and put a child’s safety at risk, was so serious that the employment relationship is irreparable and can no longer continue.
We do not know whether the driver had breached any policies or had other disciplinary incidents in the past. We also do not know whether there were any mitigating circumstances such as her remorse for the conduct, or whether she was even given an opportunity to respond to the concern and give “her side of the story”. All factors must be considered.
Taking the contextual approach, the court will assess whether the employer had just cause to dismiss. In doing so, the court will respect the principle of proportionality, assessing whether summary dismissal is a disproportionately harsh penalty. In many cases, the court or arbitrator will conclude that some lesser form of discipline would have been more appropriate. Ultimately, the court must determine whether the employment relationship has been damaged beyond repair. In many cases, seemingly egregious misconduct has been found not to be just cause for dismissal due to other factors.
If the employer fails to establish that it had cause to dismiss, the court will order that the employer pay the employee damages for wrongful dismissal. If the employer is found to have alleged just cause in bad faith (e.g. as a tactic to avoid providing a proper severance package), then the court may award punitive damages and/or moral damages for bad faith, in addition to wrongful dismissal damages to the employee. Accordingly, employers must be very careful in dismissing employees for cause.
Recently, a school bus driver was fired after the bus struck a seven-year-old student, resulting in serious injuries. Just cause for dismissal may be easier to show in that case, but again, no matter how egregious the conduct seems, the contextual approach must be applied to determine whether or not just cause exists.
If you are an employer or an employee in need of assistance, we can help. We regularly advise employers to address these issues in a proactive manner and, when facing specific instances, act quickly and decisively to remedy the situation, in order to help avoid unnecessary and significant liability. Similarly, if you are an employee whose employment has been terminated, we can advise you with respect to your rights and offer potential solutions to ensure you get what you are entitled to.