HR Matters - Spring 2014 - (Page 26)

HR & Law Just Cause Under The Employment Standards Code: Have You Got What It Takes? By Chris Donaldson Chris Donaldson, B.A., LL.B., CHRP, is an Associate Lawyer at Aikins, MacAulay & Thorvaldson LLP. He can be reached at 204-957-4889 or The determination as to whether or not an employer has just cause for termination is heavily dependent on the facts of each case. 26 HR matters * Spring 2014 THE DECISION TO terminate employment for just cause can be difficult. If an employer can prove that it has just cause, it may avoid providing the employee with a reasonable period of notice of the termination of employment (which it would otherwise be required to do under the common law). As of January 1, 2012, employers are exempt from providing notice of termination or pay in lieu thereof under The Employment Standards Code (Manitoba) (the "Code") if the employment was terminated for just cause. But what constitutes "just cause"? The Manitoba Labour Board (the "Board") considered this issue in the North Perimeter Service Centre Inc. case (136/12/ESC). The complainant employee returned from a threemonth parental leave and, within a month, was absent for one shift and left another shift an hour early. The employer terminated his employment, alleging that the absenteeism was detrimentally affecting its operations and jeopardizing its relationships with customers and other staff. The Board found that occasional or isolated absences generally are not sufficient to constitute just cause. Additionally, the employer did not keep any records regarding the absences and had not warned the employee that his absences jeopardized his continued employment. The Board found that the employment was terminated without just cause and the employee was entitled to wages in lieu of notice under the Code. The Board found that an employer will have just cause when the employee has engaged in conduct that is incompatible with a fundamental term of the employment contract. Fundamental terms implied into most employment contracts include requirements that the employee will: * act in good faith on behalf of the employer and serve the employer faithfully; * fulfill the function required by the job with reasonable skill; * not work against the employer's interests; * take reasonable care of the employer's property; and * obey the proper orders of the employer. The Board set out a three-step process for considering whether an employer has just cause to terminate under the Code. Step 1: Determine the nature and extent of the employee's misconduct, if any The Board noted that misconduct that is not discovered until after the employee is terminated can be relied upon, but only if the misconduct actually occurred before the termination. Step 2: Consider the surrounding circumstances of employee and employer With respect to the employee, consider their age, employment history, length of employment with the organization, role, and responsibilities. With respect to the employer, consider the type of business, relevant policies or practices, the employee's position in the organization, and the degree of trust in the employee. Step 3: Consider whether dismissal is a proportionate response The Board will consider if employment can be sustained or if the misconduct was so serious as to break down the employment relationship. The Board gave examples that may constitute just cause, depending on the circumstances: * serious misconduct, including theft, fraud, dishonesty, violence or harassment; * habitual neglect of duty; * conduct incompatible with the employee's duties or prejudicial to the employer's business, including conflict of interest; * disobedience of a lawful order in a matter of substance, insubordination or insolence; * chronic absenteeism or tardiness; and * incompetence. Whether or not an employer has just cause for termination is heavily dependent on the facts of each case. The decision to terminate for just cause may have repercussions not only under the Code, but also under the common law. Consider  speaking to a lawyer who can give your organization a sense of whether it's got what it takes to move forward with a termination for just cause or whether a different response is more appropriate in the circumstances.

Table of Contents for the Digital Edition of HR Matters - Spring 2014

HRMAM Chair’s Message
Upcoming HRMAM Events
HR Special Event: Excellence in Leadership Awards Recipients
Learnings from Our Governance Review Retreat
Building an Effective Safety Culture
HR & Business: Hiring Foreign Workers? Take the Right Steps
HR & Business: Finance-led Capitalism, Pensions, and Financial Crisis
HR Review: The Respect Effect
Workplace Bullying: Do You Have Honest and Strong Boundaries?
HR & Law: Just Cause Under The Employment Standards Code: Have You Got What It Takes?
The Pursuit of Employee Engagement
HR Movers and Shakers

HR Matters - Spring 2014