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             If an employee is being wilfully disobedient, insolent, insubordinate, or simply engaging in misconduct, it is possible for them to be terminated (Scott v Domtar Sonoco Containers Inc, para 8). Terminating an employee on one of these grounds is referred to as summary dismissal.

        Summary dismissal allows an employer to terminate an employee without notice and without payment in lieu of notice. However, an employer can only rely on summary dismissal to terminate an employee if it can be justified. It is the employer’s responsibility to prove they have justification for summary dismissal (Scott, para 8). To rely on misconduct as justification for summary dismissal, the employer must also prove that the misconduct made it impossible to for the employment relationship to continue (McKinley v BC Tel, para 39).

        If there are a series of relatively minor transgressions committed by the employee, these can accumulate to just cause for summary dismissal (Scott, para 30). However, in order for the employer to rely on these minor transgressions as justification for summary dismissal, the employer has a heavy burden of proof. Specifically, the employer must be able to prove: (David J Doorey, The Law of Work, p 183–184).

1. The employee was given clear an unequivocal warnings about their actions;
2. The employee was given an opportunity to correct their behaviour;
3. The employee failed to correct their behaviour when given the chance; and
4. The cumulative transgressions of the employee prejudiced the employer’s business.

           Failure by the employer to give the employee warnings and an opportunity to correct their behaviour will prevent the employer from being able to justify the summary dismissal. The employer should warn the employee about all the behaviour that could result in termination, even if it seems obvious. For example, in Cain v Roluf’s Ltd, the employer failed to warn the employee that her pattern of showing up late to work and leaving work early without permission could result in termination (Cain, para 23). When the employer terminated the employee, the court found the employer could not justify the summary dismissal because they failed to warn the employee that her tardiness and absenteeism could lead to termination (Cain, para 33).

        In summary, a misbehaving employee can be terminated. The employer can terminate the employee via summary dismissal without notice and without pay in lieu of notice. However, the employer must be able to justify the termination. If the employer is relying on a series of minor transgressions committed by the employee as justification for summary dismissal, the employer must have given the employee clear and unequivocal warnings that their actions may result in termination and the employer must give the employee the opportunity to correct their behaviour. If the employer fails to do so and skips straight to termination, the employee will be able to bring a claim for wrongful dismissal.

If you have further questions or inquiries, please contact 519-578-4150 for more information.

Resources:

Cain v Roluf’s Ltd, [1998] OJ No 661.

David J Doorey, The Law of Work, 2nd ed (Toronto: Emond Montgomery Publications Limited, 2020).

McKinley v BC Tel, 2001 SCC 38. < 2001 SCC 38 (CanLII) | McKinley v. BC Tel | CanLII >.

Scott v Domtar Sonoco Containers Inc, [1987] 20 CCEL 290.

By: Greg A. Carr

With a few specific exceptions, an employer has an absolute right to terminate an employee at any time.  There do not need to be performance issues, disciplinary issues, or any other justification for the termination.  Notwithstanding, the law protects employees by requiring an employer to provide the employee with reasonable notice of their termination, or alternatively, paying them an amount of money in lieu of receiving reasonable notice.

So what is reasonable notice?  Reasonable notice is governed by two different regimes – (1) the Employment Standards Act, 2000 (“ESA”) and (2) the common law (judge-made law). 

The Employment Standards Act

Pursuant to the ESA, an employee who has been employed for at least 3 months, is entitled to reasonable notice of:

• one (1) week, if they have been employed for less than a year;
• two (2) weeks, if they have been employed for more than 1 year, but less than 3 years;
• one (1) week per year of service if they have been employed for more than 3 years, to a maximum of eight (8) weeks’ notice.

In addition, an employee may be entitled to “severance pay”, if they have been employed for more than 5 years, and their employer has a payroll exceeding $2.5 million.  In such circumstances, in addition to the notice requirements above, the employee is entitled to one additional week’s pay per year of service (to a maximum of 26 weeks).  For example, an employee who is terminated by an employer with a payroll exceeding $2.5 million, who has been employed for 10 years, would be entitled to reasonable notice (or pay in lieu) of 8 weeks, and an additional 10 weeks’ severance pay.

The common law

Where the ESA does not apply, an employee is entitled to reasonable notice at common law.  In determining reasonable notice at common law, courts will consider a number of factors, including the employee’s age, education, role they held, and likelihood of re-employability in that or a similar position.  Based on the factors to be considered, the notice period may vary greatly depending on the case, and the ultimate notice period is informed by what judges have found to be a reasonable notice period in similar cases in the past.  While a number of factors are involved, the guiding principle at common law is a notice period of 1 month per year of service.

How do I know if it’s the ESA or common law that applies?

Whether it is the ESA or the common law that establishes the reasonable notice period will be determined by the termination provisions of an employment contract.  The common law will apply unless the employee has entered into a legally enforceable employment contract limiting the employee to “ESA minimums” upon termination.   

Even where an employment contract purports to limit an employee’s entitlement to ESA minimums, the clause may not be enforceable.  There is likely no issue in employment law more often litigated than the enforceability and applicability of a termination clause.  Courts have established strict requirements which must be contained in a termination clause, such as providing for reasonable notice and the continuation of benefits.  Where the clause does not comply with the requirements established by the courts, or runs afoul of the ESA, the clause will be unenforceable and the common law notice period will apply.

What is the employee entitled to during the notice period?

While there are some exceptions, generally speaking, an employee is entitled to their entire remuneration package throughout the notice period.  This includes not only wages and health benefits, but can include pension contributions, RRSP matching, bonuses, company cell phone reimbursement, company vehicle reimbursement, and any other benefits that arise out of employment. 

Please note that this article is for information purposes only and is not intended and should not be relied on as legal advice.  If you have any questions about your rights as an employer or employee about this, or any other employment matter, please contact Greg A. Carr at Giffen LLP, and we would be happy to meet with you to discuss your matter and determine how we can best assist you moving forward.