Wrongful Dismissal
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Table of Contents
Wrongful Dismissal
Just Cause
Reasonable Notice
Constructive Dismissal
Watson v. Seacastle Enterprises Inc.
Did the defendant wrongfully dismiss the plaintiff?
Did the defendant constructively dismiss the plaintiff?
What are the damages owed to the plaintiff?
Impact on the Hospitality Industry
Conclusion
Recommendation
Work Cited
What is Wrongful Dismissal?
Dismissal refers to the employers choice to let go of the employee generally for a fault that the employee caused. The most common everyday term for dismissal is “getting fired.” Under the common law and provincial employment standards act, employer is required to provide the employee with a reasonable period of notice before termination or money in lieu of notice. Wrongful dismissal may arise when an employer dismissed an employee without cause and without reasonable notice or money in lieu of notice . In this case, employee may sue to recover not only money owed in lieu of notice, but also damages for the loss of commissions, bonus, or benefits.
Just Cause
Just Cause means that the employer was justified in firing the employee without notice .
To determine whether there is just cause for dismissal, employer needs to consider two things: (1) whether the employee’s misconduct may be proven; and (2) whether the degree of the misconduct is sufficient to dismiss the employee without notice. If the answer to both questions is yes, then there will be just cause for the dismissal. However, if the answer for either question is no, then the employer is still obligated to give reasonable notice of termination or payment instead of the notice. For example, in Geluch v. Rosedale Golf Assn., Ltd., the court held that the employee’s act of taking food and wine home from the golf club was not serious enough to warrant dismissal without notice even though he managed to do so without paying for it. The judge ruled it this way because the employee’s job involved sampling food.
Just cause is limited to certain types of violations, including:
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Absenteeism: an unauthorized failure to show up for work that is not the result of an illness. If an employee fails to show up for work many times without a reasonable explanation, the employer can terminate their employment with the employee. Also, under some circumstances, being late constantly can result in dismissal. After noticing a pattern of lateness, leaving work early or leaving work before the end of their shift, the employer must warn the employee that such behavior is not acceptable. If the employer is using this rule to dismiss an employee, the employer must have proof and the document should state that the employee did not have an acceptable reason for being late or absent.
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Substance abuse: employees are known to come to work under the influence of alcohol or other drugs. To avoid a drunken employee in the workplace, employers must enforce a clearly worded policy stating the acceptable and unacceptable conduct.
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Incompetence: employees that lack basic skills or qualifications, or otherwise, unable to perform their assigned work. To prove that an employee is incompetent, an employer must prove that the job could have been done better or the employee is below the standard of the job.
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Dishonesty and disobedience: There are two common forms of dishonesty and they are employee fraud and employee theft. Employee fraud is when an employee performs an act that intentionally deceives the employer resulting in their own benefit and employee theft is when an employee intentionally steals from an employer. Under these situations, an employee could be dismissed. Also, disobedience can result in dismissal. Disobedience is when an employee repeatedly disobeys a supervisor’s orders or refuses to perform without a reasonable excuse.
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Conflicts of interest: employee acts in a way that affects the interest of the employer. For example, employee receive bribes from competing business or companies that are involved with their current employer, have personal dealings with the employer’s clients, customers or suppliers, or provide confidential information to competitors in exchange for benefits
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Criminal behavior is when an employee commits a crime on the job, such as physical assault and or property offences; they would be dismissed as soon as charges have been laid even before a conviction.
Reasonable Notice
Any employee whose employment has been dismissed without just cause is entitled to either:
reasonable advance notice of the effective date of termination
reasonable compensation in lieu of such advance notice
a combination of advanced notice and compensation
According to Bardal v. the Globe and Mail Ltd., a number of different factors will be considered when determining individual employees reasonable notice entitlement. The four important factors considered by the court are:
the character or nature of the employment
the length of service of the person
the age of the individual
the availability of similar employment
Constructive Dismissal
An employer may try to avoid giving notice period by making the situation so difficult that the employee simply quits. Constructive dismissal is when an employer fundamentally changes the nature of the employee’s job without their agreement . The most common forms of constructive dismissal are:
reduction in salary or benefits
change in job status or responsibilities (demotion)
change in geographic location
If constructive dismissal is proven, the employee will be treated as though