The employee is just a little bad!(Employment Law)

• Author: Bowal, Peter

We do not accept any argument relating to near cause.

--Dowling v. Halifax, 1998 Supreme Court of Canada

Full Spectrum of Cause for Dismissal

Any employer overseeing any employee in any job could probably point to some behaviour or performance that falls below expectations, even if only once in a while. Some employees arrive a few minutes late in the morning or knock off a few minutes early. Most of us have used work time for something personal, whether that is a phone call, searching the Internet, or taking that extra pen home. We all have good days and not-as-good days at work. Many employees never fully reach the promise of their job descriptions.

The question may arise for employers, "Do we have sufficient cause to dismiss this employee?" The cause may come in the accumulation of a stream of problems over years, in which case a court will look for employer warnings and progressive discipline. The cause may come from a serious single incident, such as a rude outburst, a physical attack, or some other crime in the workplace. Every case is decided on its own facts to determine the justification for summary dismissal.

Let us assume that an employer thinks it has enough cause to fire an employee and it does so. At the wrongful dismissal trial later, the court concludes that the cause did not justify the firing. Can the employer ask that the wrongful dismissal damages be reduced due to the cause that did exist? In other words, even if it was not sufficient to warrant summary dismissal, can some cause correspondingly reduce damages payable to the employee?

The Third Alternative

The judicial approach to termination notice applied by the Supreme Court of Canada was stated in the 1992 case of Machtinger. "The most frequently cited enumeration of factors relevant to the assessment of reasonable notice is from the judgment of McRuer C.J.H.C. in Bardal [(1960), 24 D.L.R. (2d) 140 (Ont. H.C.)] was, at p. 145: 'There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.'"

Is this an all-or-nothing proposition? Should the lawsuit turn entirely on whether the judge thought the employee did enough...