With the covid-19 pandemic rules set in place for over a year, quite a few people have been considering whether they could take a vacation to escape this long-term fatigue. However, if an employee chooses to do so, this may result in the loss of their jobs. In this blog, we will explore this topic so that you could make a wise choice.
CAUSE FOR DISMISSAL
As termination for cause is considered as the capital punishment of the employment law, an employer has to get over a high hurdle to establish that it has just cause to dismiss an employee.
Generally speaking, an employer may terminate an employee for cause if the employee has been guilty of
- serious misconduct;
- habitual neglect of duty, incompetence or conduct incompatible with the duties;
- wilful disobedience to the employer’s orders in a matter of substance.
The employer has the onus of proving cause for dismissal on the balance of probabilities. The employer cannot justify the termination for cause until it proves that the employee engaged in the misconduct on purpose and there is no alternative options other than terminating the employee.
Therefore, a purposely scheduled vacation against the employer’s advice with subsequent return to work without going through necessary quarantines could arguably meet the threshold. Each case is assessed on an individual basis.
A CAUTIONARY TALE FOR HIGH PROFILE EMPLOYEES
It is very difficult for an employer to meet the evidentiary burden to terminate an employee for cause. However, when it comes to high profile employees, it is advisable that they should not take a vacation during the pandemic.
High profile employees often represent the employer’s pubic image and are supposed to have their employer’s interest at heart. They are often held to a higher standard. If a high profile employee fails to observe the public health protocols and thus puts their employer in a negative light, the employer may have a valid reason to terminate this employee for just cause.
WHAT IF YOU GET FIRED
If you have been dismissed because of taking a vacation during the pandemic, it is necessary to see whether you are terminated with or without cause by your employer.
a) Termination Without Cause
In Ontario, an employer is entitled to terminate any employee at any time for any reason that is not discriminatory. However, it must provide notice or pay in lieu of notice of termination. This is what we call termination without cause.
If you are terminated without case, you are entitled to termination/severance pay determined by either your Employment Standards Act (“ESA”) minimums or common law reasonable notice. In most cases, a terminated employee could receive a much greater severance package under common law than the minimum standards under the ESA. Common law severance pay is available to any employee, as long as they are not terminated for just cause and as long as they are not subject to a valid termination clause that replaces the common law entitlements.
The common law severance package that an employer should pay to a terminated employee depends on a number of factors. Relevant factors include, inter alia, length of service, age, salary, the position the employee held within the company, whether the employee was actively recruited and the general economy. There is no easy calculation to determine the amount of severance that an employee will receive at common law. Therefore, it is advisable to consult an experienced employment lawyer about this.
b) Termination With Cause
In the case of termination for cause, it means that an employer may not have to provide with an employee with common law severance.
As mentioned above, it is a high bar to terminate someone with cause. The reason for the high bar is that in the event of willful misconduct, disobedience or willful neglect of duty that is not trivial, an employee will not receive any termination or severance pay.
Generally, there must be some serious misconduct that harms the employment relationship, such as theft, violence, fraud rising to the level of gross misconduct. A purposely scheduled vacation against the employer’s advice with subsequent return to work without going through necessary quarantines could arguably meet the threshold. Each case is assessed on an individual basis.
If you are an employee who has been fired for cause, you should absolutely reach out to a lawyer to review the circumstances of your dismissal. You may have a case for wrongful dismissal.
Employment issues in relation to the termination during the Covid-19 can be quite complicated. It is advisable to seek professional help from an experienced employment lawyer. If you are terminated for breaking the Covid-19 health protocols, Top Toronto employment lawyer, Stacey Ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.