We're celebrating 10 Days of Membership! Today's Gift: $20 off your professional membership with promo 10DAYS20OFF
Training, policies and tools to help HR prevent and respond to harassment claims.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Develop your HR competencies and knowledge in-person in 12 U.S. cities or virtually.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
Canadian employers are often faced with the galling choice between asserting just cause for termination and paying potentially large sums of money to departing employees who have been caught lying, cheating or stealing.
In Canada, just cause is a very high standard. Often, instead of relying on misconduct or performance issues, employers elect to terminate problem employees without cause.
When employees are terminated without cause in Canada, they must be given reasonable notice of termination or pay in lieu of notice. Employment standards legislation prescribes the minimum amount of notice required. However, without limiting language in a contract of employment, employees are often entitled to far longer notice periods under the common law.
The Ontario Court of Appeal recently upheld a decision illustrating that when it comes to misconduct, serious dishonesty will allow an employer to prove just cause.
Ronald De Jesus was terminated for cause after working as a production supervisor for more than 19 years. The company discovered that, despite being alerted that there was a problem, he had allowed approximately 1,500 defective camshafts to be processed in a single shift and had subsequently lied about it.
De Jesus had insisted at trial that he had carried out regular checks of the line and had instructed other members of his team to do the same. He also denied that 1,500 defective camshafts had been produced during his shift.
The trial judge accepted the company's evidence regarding the number of camshafts produced, and found that it would have been impossible for the defects in question to go unnoticed if the employee had really been performing the checks as he claimed he had. As such, the judge found that he had been lying about the checks.
[SHRM members-only platform: SHRM Connect]
The Court of Appeal found that the company had met its onus to prove, on a balance of probabilities, that it had just cause to terminate the employee without notice or compensation in lieu of notice.
The Supreme Court of Canada has described the test for whether dishonesty constitutes just cause for dismissal as "whether the employee's dishonesty gave rise to a breakdown in the employment relationship." As the court noted, "This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship or is fundamentally or directly inconsistent with the employee's obligations to his or her employer."
The Court of Appeal upheld the trial judge's decision that the employee's failure to supervise and to take any remedial steps once the problem was brought to his attention, combined with his dishonesty about what had happened, went to the heart of the employment relationship.
De Jesus v. Linamar Holdings Inc., Ont. Ct. App., 2017 ONCA 384 (CanLII) (May 15, 2017).
Professional Pointer: Many employees fail to appreciate that dishonesty can compound any initial misconduct in the eyes of the court. Canadian employers should be encouraged by the Court of Appeal's ruling, but should still exercise caution when deciding whether to assert cause for a termination. To minimize risk, many employers include clauses in their employment contracts limiting employees' entitlements upon termination without cause to the employment standards minimums. When the case for just cause is not clear-cut, this could save you from having to pay a long-serving employee a large sum under the common law.
Amanda Boyce is an attorney with Stringer LLP, the Worklaw® Network member firm in Toronto.
Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Your session has expired. Please log in again before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
Choose from dozens of free webcasts on the most timely HR topics.
SHRM’s HR Vendor Directory contains over 3,200 companies