{"id":78,"date":"2019-06-12T11:14:07","date_gmt":"2019-06-12T15:14:07","guid":{"rendered":"https:\/\/www.debousquet.com\/blog\/?p=78"},"modified":"2022-03-10T14:50:03","modified_gmt":"2022-03-10T19:50:03","slug":"just-cause-and-appropriate-notice-period","status":"publish","type":"post","link":"https:\/\/www.debousquet.com\/blog\/2019\/06\/12\/just-cause-and-appropriate-notice-period\/","title":{"rendered":"Just Cause and Appropriate Notice Period"},"content":{"rendered":"

In Ruston v Keddco Mfg. (2011) Ltd., the Court of Appeal for Ontario considered the issues of just cause
\nfor employee termination and the appropriate notice period owed to the employee if the employer did
\nnot have cause to terminate? The Court found that the trial judge and the employment lawyers<\/a> were correct in finding that the
\nemployer failed to prove just causation in terminating the employee. The Court also agrees with the trial
\njudge’s award of a 19-month notice period. The trial judge applied the Bardal factors and emphasized
\nimportant considerations, such as the appellant’s age (54), finding of close family ties to the area for the
\npurpose of finding similar employment, and the finding that the employee was terminated for serious
\nallegations and was not provided a reference letter.<\/p>\n

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

McKinley v B.C. Tel<\/a><\/em> (2001) states that an \u201cemployer has just cause for summary dismissal where the
\nemployees dishonesty gives rise to a breakdown in the employment relationship.\u201d Ontario courts have
\nfocused on whether the employee\u2019s behavior was sufficiently serious to undermine the core of the
\nemployment relationship. (Fernandes v Peel Educational &amp; Tutorial Services Limited (Mississauga Private
\nSchool); citing Dowling v Ontario (Workplace Safety and Insurance Board) (2004). In the case at hand,
\nthe trial judge held that the employer failed to prove that the employee\u2019s behaviour gave rise to a
\nbreakdown in the employment relationship. The trial judge provides reasons such as a:<\/p>\n

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

    The court then considered the issue of an appropriate notice period. The employer has failed to prove
    \nfor cause dismissal and the employee is entitled to reasonable common law notice (Machtinger v HOJ
    \nIndustries Ltd.,). The length of common law notice periods is determined by using the Bardal factors: the
    \nage of the employee, the character of his or her employment, the length of service, and the availability
    \nof similar types of employment, considering the experience, training and qualifications of the employee.
    \n(Bardal v Globe &amp; Mail). The employee was president of the company and was 54 years-old at the time
    \nof dismissal. He was employed for 11 years and had 45 people reporting to him. The employee is seeking
    \na high-level position within the Sarnia area. The trial judge considered factors such as the employee\u2019s
    \nfamily obligations which require him to remain in the Sarnia area and the fact that the employee\u2019s highest
    \nlevel of education is grade 12. There is no meaningful opportunity to gain similar employment in the
    \nSarnia region.<\/p>\n

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

    In determining just cause for dismissal, the Court in Ruston held the employer to a high evidential
    \nburden of establishing conduct amounting to a breakdown in the employment relationship. It appears
    \nthat the employer failed to present any evidence regarding the behaviour of the employee that could
    \namount to such behaviour. In determining a common law notice period with no just cause for dismissal,
    \nthe Court is willing to take unique circumstances and considerations into account and consider each
    \ncase on an individual basis.<\/p>\n","protected":false},"excerpt":{"rendered":"

    In Ruston v Keddco Mfg. (2011) Ltd., the Court of Appeal for Ontario considered the issues of just cause for employee termination and the appropriate notice period owed to the employee if the employer did not have cause to terminate? The Court found that the trial judge and the employment lawyers were correct in finding that the employer failed to prove just causation in terminating the employee. The Court also agrees with the trial judge’s award of a 19-month notice period. The trial judge applied the Bardal factors and emphasized important considerations, such as the appellant’s age (54), finding of…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7,8,6],"tags":[4,11,9,10],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.debousquet.com\/blog\/wp-json\/wp\/v2\/posts\/78"}],"collection":[{"href":"https:\/\/www.debousquet.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.debousquet.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.debousquet.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.debousquet.com\/blog\/wp-json\/wp\/v2\/comments?post=78"}],"version-history":[{"count":4,"href":"https:\/\/www.debousquet.com\/blog\/wp-json\/wp\/v2\/posts\/78\/revisions"}],"predecessor-version":[{"id":718,"href":"https:\/\/www.debousquet.com\/blog\/wp-json\/wp\/v2\/posts\/78\/revisions\/718"}],"wp:attachment":[{"href":"https:\/\/www.debousquet.com\/blog\/wp-json\/wp\/v2\/media?parent=78"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.debousquet.com\/blog\/wp-json\/wp\/v2\/categories?post=78"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.debousquet.com\/blog\/wp-json\/wp\/v2\/tags?post=78"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}