For Cause Termination
Workers in Ontario, and indeed across Canada, can be terminated from their employment for cause. For cause dismissal is the most severe form of dismissal, and if cause has been established, workers can face significant disentitlements. Consequently, it is important to be aware of what protections workers have when faced with allegations of dismissal for cause. As outlined in R v Arthurs,if an employer terminates a worker for cause, they must demonstrate that the worker was:
- Guilty of serious misconduct,
- Habitually neglectful of their duty,
- Incompetent,
- Disobedient of the employer’s reasonable orders,
- Engaged in conduct incompatible with the workers’ duties; or,
- Engaged in conduct prejudicial to the employer’s business.
However, even if a worker has proven to meet one of the above criteria, dismissal itself may be too severe a response to the worker’s impugned misconduct. As outlined by the Supreme Court of Canada in McKinley v. BC Tel, 2001 SCC 38, dismissal is only warranted for just cause in the most severe cases. Instead, the norm is to take a proportional and contextual approach to discipline in the workplace. In other words, rather than dismissing an employee for something like incompetence or dishonesty, employers are typically required to utilize progressive discipline to temper and mitigate worker misconduct. It is only in circumstances of severe misconduct that a worker can be terminated for just cause without the employer using progressive discipline. Otherwise, if progressive discipline has been applied and the worker does not correct their behaviour, the worker might be subject to just cause dismissal.
Disciplinary Records and Culminating Incident
Since dismissal for cause typically requires progressive discipline being administered prior to the dismissal, disciplinary records are often admissible to demonstrate that a worker has a chequered record. Even if a worker has not engaged in sufficiently serious misconduct to warrant a dismissal, the worker’s disciplinary record can be used by the employer to demonstrate that the worker does not appropriately respond to discipline. In other words, a worker’s disciplinary record can be used to justify dismissal even in instances of relatively minor misconduct so long as that minor misconduct serves essentially as the straw that breaks the camel’s back.
Nevertheless, there are some restrictions to relying upon disciplinary records to dismiss workers for cause. In unionized workplaces, workers can grieve discipline when it is administered. This means that workers can object to discipline after the fact, and if their objection is successful, the discipline can be set aside and not counted on their record. In federally regulated workplaces, where workers are covered by the Canada Labour Code, even non-unionized workers can enjoy the benefit of this policy. Pursuant to the Supreme Court of Canada’s ruling in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, federally regulated workers covered by the Canada Labour Code are entitled to similar protections that unionized workers are afforded. Consequently, while federally regulated non-unionized workers cannot grieve discipline after it is imposed, if they are later dismissed for cause, they have an opportunity to challenge the disciplinary record that the employer relies upon to demonstrate that such discipline was improper and should not be used to justify dismissal. This concept is confirmed in Granite Transport Ltd. and Golphy, Re, where the adjudicator stated that non-unionized workers under the Canada Labour Code can challenge disciplinary records relied upon by their employer at the time of dismissal. If the prior discipline imposed was baseless or too severe, the dismissal itself may likewise be baseless or too severe a response to the purported misconduct. This is a significant form of protection for workers to avoid being dismissed for cause, although it is not the only form of protection available.
Sunset Clause
Sunset clauses are another form of protection available to workers with regards to disciplinary records. A sunset clause is a term of contract that outlines how long a given piece of discipline is permitted to remain on a worker’s record. Because these are specialized terms under contract, they can be negotiated to specify various lengths of time after which the discipline cannot be relied upon in efforts to terminate the worker. While sunset clauses are most frequently seen under collective agreements in the unionized context, they can also be established by workers in non-unionized fields under their employment contracts. The protections afforded by a sunset clause are quite significant as they eliminate the ability of employers to rely upon prior discipline that has been subject to the clause. Nevertheless, a disciplinary record can still be maintained for the purpose of challenging a worker’s claim to having a spotless or clean disciplinary record, even if the record itself cannot be used to justify progressive discipline or dismissal for cause.