What is just cause for termination? 

Just cause in the employment context means that an employee has done something that gives the employer a right to dismiss the employee immediately. When there is just cause for termination, the employer does not need to provide the employee with advanced notice, pay in-lieu, or any other severance package. 

Common types of just cause include:

1. Dishonesty: Situations that are deemed to be dishonesty in the workplace are, for example, when an employee submits inaccurate claims for overtime pay or sick leave benefits, accepts kickbacks from suppliers, or steals company property.
2. Insubordination: when an employee intentionally refuses to obey the lawful and reasonable directions of his employer within the scope of their employment. 
3. Insolence: when an employee uses unacceptable or abusive language, generally directed at a superior
4. Off-duty conduct: If an employer can justify that an employee’s off-duty conduct harmed it’s business or reputation, the employer can most likely dismiss the employee for cause. 

Is refusing to comply with the vaccination policy a just cause?

The short answer is: it depends. The law has not been conclusive on the topic as many lawsuits in this area have just begun. In the recent outcome of the arbitration, Electrical Safety Authority v Power Workers’ Union*, employers may have just cause to discipline employees, including and up to termination, if an employee is unable to perform any work for a substantial period of time or if they are being unreasonable in complying with any reasonable alternative. In other words, each situation is unique, and they must be assessed individually to determine whether or not it gives the employer just cause. 

For example, if you have the ability to work remotely most, if not all, of the time, this may be a case where the employer does not have just cause to terminate you for refusing to follow the vaccine policy. On the other hand, if you work onsite with vulnerable people like children and seniors, not following the vaccine policy could likely give your employer just cause to dismiss you. 

On another note, if you have a valid human rights reason (such as medical or religious) for refusing to follow the vaccination policy, your employer is generally required to provide you with the accommodation you need. 

If you have been terminated with just cause or you need to provide your employer with a medical or religious exemption for not following a workplace vaccination policy, we can help. Contact us today.

*If you are interested in learning more about the decision in Electrical Safety Authority v Power Workers’ Union, read our blog post: https://www.debousquet.com/blog/2021/12/14/the-power-workers-union-covid-19-vaccine-policy/ 

Disclaimer: This article is meant for informational purposes only. This does not constitute legal advice or opinion. 

The post Does Refusing to Follow the Vaccine Policy Allow My Employer to Terminate Me for Just Cause? first appeared on De Bousquet Professional Corporation Blog.

The employee was 54 years old at dismissal and occupied the highest position as President of the
company. He received quick promotions from his initial position as a sales representative in 2004. The
employee has a grade 12 education and has been unsuccessful in securing re-employment. The
employer justified the dismissal for cause stating that he was being terminated for committing fraud. No
explanation was provided. The employer also advised the employee that if he hired a lawyer, it would
counter-claim and would be very expensive.

McKinley v B.C. Tel (2001) states that an “employer has just cause for summary dismissal where the
employees dishonesty gives rise to a breakdown in the employment relationship.” Ontario courts have
focused on whether the employee’s behavior was sufficiently serious to undermine the core of the
employment relationship. (Fernandes v Peel Educational & Tutorial Services Limited (Mississauga Private
School); citing Dowling v Ontario (Workplace Safety and Insurance Board) (2004). In the case at hand,
the trial judge held that the employer failed to prove that the employee’s behaviour gave rise to a
breakdown in the employment relationship. The trial judge provides reasons such as a:

1. Evidence relied upon the employer was known to the employer in January 2015 (emails
   regarding personality issues);
2. High ranking employee (daughter of employer) provided the employee a bonus for the 2014
   business year and expressed her commitment to working with the employee to improve the
   business of the employer; and
3. Two days prior to the termination, high ranking employee emailed to employer regarding the
   employee is silent regarding conduct concerning fraud or misfeasance.

The court then considered the issue of an appropriate notice period. The employer has failed to prove
for cause dismissal and the employee is entitled to reasonable common law notice (Machtinger v HOJ
Industries Ltd.,). The length of common law notice periods is determined by using the Bardal factors: the
age of the employee, the character of his or her employment, the length of service, and the availability
of similar types of employment, considering the experience, training and qualifications of the employee.
(Bardal v Globe & Mail). The employee was president of the company and was 54 years-old at the time
of dismissal. He was employed for 11 years and had 45 people reporting to him. The employee is seeking
a high-level position within the Sarnia area. The trial judge considered factors such as the employee’s
family obligations which require him to remain in the Sarnia area and the fact that the employee’s highest
level of education is grade 12. There is no meaningful opportunity to gain similar employment in the
Sarnia region.

The trial judge distinguishes the case at hand from Singer, where the employee (51 years old) was
terminated without cause from his position as President and General Manager. The Court of Appeal
upheld the trial judge’s award of a common-law notice period of 17 months. In the case at hand, the
employee is older, has family ties that interfere in finding similar employment, was terminated for
serious allegations, and not provided a reference letter. On the basis of distinguishing this unique set of
facts from those of Singer, the Court of Appeal held the notice period of 19 months appropriate.

In determining just cause for dismissal, the Court in Ruston held the employer to a high evidential
burden of establishing conduct amounting to a breakdown in the employment relationship. It appears
that the employer failed to present any evidence regarding the behaviour of the employee that could
amount to such behaviour. In determining a common law notice period with no just cause for dismissal,
the Court is willing to take unique circumstances and considerations into account and consider each
case on an individual basis.

The post Just Cause and Appropriate Notice Period first appeared on De Bousquet Professional Corporation Blog.