HR Professional - August/September 2008 - (Page 19)

L E GA L B Y: N A O M I H O R R OX NEAR CAUSE: NOT NEARLY ENOUGH ust cause is notoriously difficult for employers to establish. An employer must not only prove the employee engaged in misconduct, but also that the nature or degree of the misconduct warranted the employee’s dismissal. If cause does exist, the employee is not entitled to reasonable notice or pay in lieu of notice. If cause does not exist, the employee is entitled to a notice period based on the character of employment, length of service, age, training and qualiﬁcations of the employee. In the event a court ﬁnds there was employee misconduct, but that it was insufﬁcient to establish just cause, the employee is entitled to the same notice as an employee whose conduct was impeccable. This is referred to as near cause and this misconduct typically includes disobedience, subjecting the employer to risk of ﬁnancial harm, rude or improper treatment of staff and/or customers, minor conﬂicts of interest and poor or disappointing performance. J ‘‘ For now, the Supreme Court of Canada has clearly rejected near cause. Application of near cause To combat this all-or-nothing approach, some courts in British Columbia, Ontario, New Brunswick, Newfoundland and Saskatchewan began applying near cause even if the employer did not have grounds to ﬁre their employee. But Ontario courts later grew suspect of near cause, and the Ontario Court of Appeal explicitly rejected it in Ditchburn vs. Landis & Gyr Powers Ltd., a case in which a long-service employee was ﬁred after getting into a ﬁst ﬁght with one of the company’s best clients after a boozy lunch at a strip club. A year later, in 1998, the Supreme Court of Canada shut down near cause completely in Dowling vs. Halifax. ’’ Pros and cons of near cause In Laszczewski vs. Aluminart Products Ltd., Ontario Superior Court Justice Echlin reopened the near cause debate. At trial, evidence was presented that Laszczewski was involved in several altercations with other employees and often failed to follow union protocol. The employer failed to address the problems, but eventually terminated Laszczewski’s employment with only one week notice. Although Echlin declined to make a ﬁnding of near cause, he did suggest that near cause is consistent with several other employment law principles. The Supreme Court also altered its deﬁnition of just cause since Dowling to stipulate a contextual approach to determining cause. Echlin’s decision outlined the pros and cons of near cause. Near cause would facilitate settlements by creating a middle ground where employers could reduce the notice period for employees who engaged in misconduct, which may reduce the chances of an employer taking a hard-line approach and maintaining just cause for dismissal. But he also cautioned that judicial recognition of near cause may result in employers’ trumping up false and trivial concerns to support unreasonably low notice periods. For now, the Supreme Court of Canada has clearly rejected near cause. Employers should continue to document incidents of employee misconduct, not only for the purpose of progressive discipline, but also in the event near cause re-emerges as a recognized doctrine or if the courts begin to consider employee misconduct as a factor in assessing reasonable notice. Naomi Horrox, LLB, is an associate with Fraser Milner Casgrain LLP and is contributing editor of Canadian Employment and Equity Rights. w w w. HRT houghtLeader. c om A u g u s t / S e p t e m b e r 2 0 0 8 19 http://www.HRThoughtLeader.com

Table of Contents Feed for the Digital Edition of HR Professional - August/September 2008

HR Professional - August/September 2008 Contents Editor's Letter Contributors Leadership Matters Upfront Legal Compensation Human Capital The New Frontier On Message Strategy HR 101 Interview with Annette Veschuren Talent Management Training Work/Life Balance Off the Shelf The Last Word

HR Professional - August/September 2008

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