Tag Archives: employment law

No ‘Near Cause’ for Employment Termination

by Michael V. Coyle, JD*

Most people understand that if an employer has “just cause” to fire an employee for misconduct the employee is entitled to pay up to the date of the firing and nothing more. On the other hand, if the dismissal is “without cause” the employer has to pay the employee an amount of money (severance) in lieu of the notice that the law says the employee should have received, except where reinstatement is available under a Collective Agreement or the Labour Standards Code.

But what about the situation that falls somewhere in the middle, where the employee’s misconduct is not quite bad enough to be cause for dismissal? Can the employer reduce the severance to account for the misconduct?

In employment law, that is known as “near cause”. Under the doctrine of “near cause”, it was held by some courts back in the 1980s and early 1990s, that misconduct on the part of an employee even where it falls short of cause for dismissal can still be grounds for reducing the severance.

But in 1998 the Supreme Court of Canada put an end to the doctrine of “near cause” when it overturned the Nova Scotia Court of Appeal’s decision in Dowling v. City of Halifax. The nation’s highest Court bluntly stated that, “We do not accept any argument relating to near cause.”

So the bottom line is that the employer either has “cause” for termination, in which case the employee gets nothing, or the termination is “without cause” in which case the employee is legally entitled to full pay in lieu of notice as severance, or possibly to reinstatement. There is no middle ground.

This is why it is so important – for both employers and employees – in dismissal situations to get competent advice on whether there really is what the law considers to be “cause” for dismissal. Personal opinions on the subject – by either party – no matter how strongly they are held, do not decide the matter and can, in fact be very costly. The law books are full of those cases.

The determination of whether or not there is “cause” in a particular situation is a highly specialized legal question.

For information and advice about your personal situation, please contact me.

*Michael Coyle is an experienced employment-labour relations lawyer and a neutral mediator and arbitrator based in Kentville, Nova Scotia. Information provided in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at michael@mvc-private-law.ca  For more information and tips on employment and labour law issues, visit his website at www.michaelcoyle.ca

 

 

 

 

 

 

 

 

 

 

©Michael V. Coyle, 2012

 

Human Rights Law: Practical Tips on the Duty to Accommodate

by Michael V. Coyle, JD*

“How long do I have to keep a job open for someone who is off sick?” is a question I have been asked by any number of employers over the years.

The most important thing to understand in answering that question is that it is not strictly an employment law question. It is actually a Human Rights question. The Duty to Accommodate is a doctrine devised by the courts to enforce human rights laws that prohibit discrimination. The duty to accommodate applies to all prohibited grounds of discrimination (age, gender, race, religion, disability, health, political beliefs, family status, etc.), not just sickness or injury; and it applies to all who provide services or accommodations (landlords, for example), not just to employers.

That is important to know because Human Rights laws are “quasi-constitutional” in nature and they take precedence over all other laws except the Constitution of Canada itself.

So, while employment law might say that an employee who is absent from work due to illness has breached their employment contract by failing to come to work, Human Rights law says “not so fast”.

The duty to accommodate is by no means a “new” development in the law. It has been the law in Canada for over a dozen years and it is one that continues to evolve.

Essentially, an employer must accommodate the employee by putting them on a leave of absence without pay, while holding their job for them and keeping it there “to the point of undue hardship” for the employer. You will note that is to the point of “undue hardship”, not simply “to the point of hardship”. The law assumes that there will always be some hardship involved for an employer in every accommodation.

So, what might be considered “undue” hardship? The law has not established a time limit or time formula for determining when a medical absence becomes an undue hardship. Each case has to be looked at on its own. Generally, an extended absence might create an undue hardship for the employer when, for example:

  • The employer is unable to attract or retain persons qualified for the position because it is not being offered permanently.
  • The cost of paying an employee’s benefits while that person is not working becomes unreasonable.
  • The employee’s skills or qualifications become outdated.
  • A new business focus or approach no longer requires the employee’s qualifications or skills.

That is not to say that, at some point, a prolonged absence will not by itself become an undue hardship and violate the employment contract. It is just to say that it can be difficult to show exactly that the point has been reached that the employer can legally let the absent employee go.

The next question (more of a statement, really) that employers typically ask is: “Well, if I have to accommodate this person then I have the right to know the precise details of their medical condition, right?”

The answer is “no”. An employer is only entitled to receive the information necessary to enable it to accommodate the employee. This will include medical verification that the employee has a legitimate illness, and a professional estimate of how long the employee will need to be accommodated.

It is important to understand that just because a person had a right to be accommodated that does not mean that their privacy rights go out the window.

Although they rarely admit it, some employers (and, sadly, even some lawyers) seem to think that they can thwart the employee’s human rights and, in effect, make them “go away”, by demanding  embarrassing or unnecessary medical information. That can be a very dangerous tack for an employer to take.

If the doctor is unable to say how long the employee will likely be off work that may, or may not, end the employer’s duty to accommodate. If the doctor is simply saying that the prognosis is uncertain at present or perhaps that further tests are needed or that a specialist is being consulted, that would probably not end the employer’s duty. If, on the other hand, the doctor is saying firmly that the person will be off work “for the foreseeable future” and there is no “return to work date” available, then that may well end the duty.

On the other hand, the employee is required to co-operate with the employer and obtain medical verification that can reasonably assist the employer in its duty to accommodate. An illegible or cryptic note scrawled on a prescription pad saying something like “Joe is off work until further notice” is not likely to be sufficient. Frankly, the problem here is often with the doctor, not with the employee. Some doctors still believe that a handwritten “doctor’s note” is all that anyone needs and some doctors may  take offence at any suggestion that their authority to “put someone off work” is apparently being questioned by anyone.

A lot depends on how the employer approaches the question of medical verification with the employee. If they do so with obvious suspicion and mistrust – as though they are trying to drive a wedge between the employee and their doctor – the  results and the quality of information they receive are often predictable. However, if they take a more open-minded approach from the perspective of an employer who is genuinely trying to accommodate their employee, the results in my experience are much more satisfactory for all concerned.

In cases where the employee is able to return to work on limited or modified duties, the employer is entitled to have professional verification that the employee has a legitimate functional limitation, a description of the limitation to help the employer accommodate that limitation.

I have only discussed here the most common situations where an employee has been “put off work” because of an illness, be it physical or mental. That would, of course, include what are often called “stress leave” situations. More complex situations where employees have on-going disabilities that need to be accommodated in the workplace, or that might involve workplace safety concerns, or ones that involve determinations of “bona fide occupational qualifications”, will require different assessments.

So, too, will cases where the discrimination that must be prevented by accommodation is based on grounds other than illness or disability, such as those based on gender, religion or family status.

I cannot emphasize enough how important it is for employers to get competent advice before committing to a course of action in these cases. This is a highly specialized area of law. The fact is that early, knowledgeable advice can actually save you a lot of money in these cases. There is very little that a lawyer can do for you once a Human Rights complaint is filed except provide expensive representation at a human rights hearing or in a lawsuit that probably could have been avoided with experienced legal advice in the first place. If in doubt, you should seek a second opinion.

For legal advice about your personal or business situation, please contact me.

*Michael Coyle is an experienced employment, labour and human rights lawyer based in Kentville, Nova Scotia. Information and opinion expressed in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at michael@mvc-private-law.ca  For more information and tips, visit his website at www.michaelcoyle.ca

 ©Michael V. Coyle, 2012

 

Employment Law Basics – What Every Employer and Employee Should Know

by Michael V. Coyle, JD*

Every employee in Nova Scotia has a contract with their employer – whether they work full time, part time, seasonal or casual. The contract exists whether they have been working there 10 years or 10 minutes. In relatively rare cases the contract might be in writing, but in the vast majority of cases the contract of employment is unwritten. But it is still a contract in the eyes of the law.

The essence of the contract of employment is that the employee will faithfully carry out their assigned duties and the employer will pay the employee an agreed wage or salary and benefits. The contract continues until it is lawfully terminated by one party or the other.

In theory, an employer is free to terminate the contract at any time.

If the employee has breached the contract by failing to live up to his/her end of the bargain as a faithful employee that is called a “termination for just cause”. In plain language, the employee is “fired”. In that case, the employer owes the employee nothing except wages and benefits due to the date of firing.

But if the employer fires the employee without “just cause”, the employer must pay the employee an amount of money in lieu of the “reasonable notice” that they should have received from the employer. If the employer refuses to pay, the employee can sue the employer for wrongful dismissal. Generally, the employer’s financial position is not “just cause” for dismissal, nor is a decision by the employer to “restructure” or “down-size” their operation.

The determination of the amount that the employer must pay for wrongfully dismissing an employee is based on a variety of factors. These include the employee’s age, education, training and family circumstances, the time that it would likely take to find comparable employment in that business, trade or industry in that geographic area, the length of time the employee has worked for the employer and the kind of job or position they held with the employer. On the other hand, a unjustly dismissed employee has a legal obligation to look for work and take a comparable job if it is offered.

If the employer tries to avoid its obligations under the contract of employment by forcing the employee to quit, for example, by changing the employee’s fundamental terms of employment without their agreement, that is “constructive dismissal”. In that case, even though the employee quit, they can still sue the employer for wrongful dismissal.

Employers cannot discriminate against employees – before and after hiring – on  any of the grounds set out in the Human Rights Act. They have a legal duty to accommodate employees who are sick or who have disabilities. Employees are forbidden from harassing other employees on any of the prohibited grounds of discrimination under the Human Rights Act.

Employers and employees must abide by the Labour Standards Code and, generally, employers have an obligation to continue additional benefits they have customarily provided to their employees beyond the Labour Standards Code. The Labour Standards Code provides that, once an employee has worked for an employer for 10 years, they can only be dismissed for “just cause”. A 10 year employee who has been fired without just cause can seek reinstatement to their former position, with back pay for lost wages, under the Labour Standards Code.

A “lay off” is a reduction in the workforce due to a shortage of work caused by the employer’s inability, in good faith, to secure orders or work or other circumstances (like fire, natural disaster, strikes or lockouts by suppliers or key customers, etc.) that are beyond the employer’s control. A “lay off” should not be confused with a “termination” or “dismissal”. Laid off employees are not “fired” and they have a contractual right to be recalled to work once the reason for the “lay off” has gone away. An employer who hires a new employee to replace one who has been “laid off” risks being sued for wrongful dismissal.

The law has changed in recent years concerning probationary employees. A judge of the Supreme Court of Nova Scotia recently summed it up this way: “The era when an employer could arbitrarily terminate a probationary employee without obligation or explanation is past.” In most cases, probationary employees can now only be dismissed for “just cause”, like regular employees.

In a unionized workplace, the employer and the Union bargain for terms of employment which are set out in the Collective Agreement. Generally speaking, a unionized employee cannot sue the employer for breach of the Collective Agreement, but instead must go through the Union by way of the grievance procedure in the Collective Agreement to seek justice. Unions, in turn, owe the employees they represent a “duty of fair representation” under the Trade Union Act.

If you are an employer or an employee and an employment law issue arises you should consult with a knowledgeable employment lawyer before taking any actions. Employment law is a specialized field. Most employment law cases can be resolved out of court with the help of experienced legal counsel.

 

*Michael Coyle is an experienced employment lawyer and a neutral mediator and arbitrator based in Kentville, Nova Scotia. Information expressed in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at michael@mvc-private-law.ca  For more information and tips on employment and labour law issues, visit his website at www.michaelcoyle.ca

 

©Michael V. Coyle, 2012

Defamation Of Employee Costs Employer $60,000

Defamation and Wrongful Dismissal 

by Michael V. Coyle, JD*

A  Nova Scotia employer was recently ordered to pay a wrongfully dismissed employee over $60,000 in damages, costs and interest for defamatory statements the employer made – including a statement made to EI about why they dismissed the employee. This comes on top of the employee’s reinstatement ordered by the Labour Standards Tribunal, with 18 months back pay.

The plaintiff was the Chief Bar Steward with a branch of the Royal Canadian Legion with over 11 years service. The employer believed that he had been selling draft beer at “Happy Hour prices” outside of Happy Hour, causing the employer to suffer a loss of profits on its bar sales. In the Legion’s view, that loss of revenue was tantamount to theft, so they fired him.

The employee first went to the Labour Standards Tribunal and won reinstatement, with 18 months lost wages, when the employer was unable to prove just cause for his dismissal. There was never any suggestion that the employee had personally gained in any way from his alleged misconduct. The employee then sued the employer for defamation in the Supreme Court.

The employer stated on the ROE that he was dismissed for “willful misconduct or criminal conduct”. When the employees appealed the denial of his EI benefits, the Legion wrote to EI that his conduct “may be considered fraudulent”. Further, at a branch general meeting, the Audit Committee chair reported that the fired employee had been involved in what they considered to be the “misappropriation of funds”. The word in the community was, as one witness put it, that the fired employee had been caught with his “hand in the cookie jar”.

The Court rejected the employer’s claim it had “qualified privilege’ in its statements to EI, saying that while the first statement on the ROE (“wilful or criminal misconduct”) may have been ambiguous (because it was a check-box on the ROE), there was nothing ambiguous about the second statement to EI that the employee’s actions “may be considered fraudulent”. The Court was not at all impressed with the weasel words “may be considered”.  As the judge bluntly put it: “This is a serious allegation, and the use of the word “may” does not, in my view, mitigate from the imputation of criminal conduct. The statement is defamatory.”

So too was the report on the matter given by the Audit Committee chair at the general meeting. In both cases the employer was either deliberately attacking the employee’s reputation for honesty and integrity by imputing criminal conduct, or it was being reckless about how such statements would be understood in the community. In either event, the statements were held to be defamatory.

The Court also pointedly rejected any suggestion that because the Legion is a non-profit body, it should receive special treatment in the Court. The Judge quoted authority that, “A non-profit or benevolent corporation is liable for its torts, including libel and slander, the same as any other corporation.” The same law applies, of course, to small businesses.

Analysis

This case reminds us that defamatory statements are judged, not merely by the words used, but also by what they imply about the person who is defamed. The law books are full of cases where people thought that by using clever wording they could avoid a defamation suit. The question is not merely “What words were used?”, rather the Court will also ask itself, “What would a reasonable person in the community think that those words really meant?”

This case also reminds us that employers should be very careful what they say about their reasons for termination. Some employers believe that taking an aggressive posture with EI is a good strategy. The theory is (and I’ve heard this many times, sometimes attributed to lawyers) that if they can prevent the fired employee from getting EI that will improve the employer’s position in a wrongful dismissal suit.

Some  employers believe, or are advised,  that clever wording like “may be considered” will shield them from the legal consequences of their statements.

On the other hand, the theory goes, if the employer takes a more objective stance with EI, that will simply encourage the employee to file a wrongful dismissal claim. That theory is misguided and this case shows that it can be very dangerous. I always remind employers that whether a former employee gets EI is a matter between that employee and the Government. The employer does not have to take a position on that matter and it is often very unwise, as this case shows us, for the employer to do so.

The truth is that statements of this nature made by employers are often simply emotional responses to the hurt feelings surrounding the dismissal. Some employers will even try to justify their aggressive statements to EI by saying that they have a “moral duty” to see that the fired employee is deprived of EI benefits.

Small business and community organizations are particularly prone to this thinking because of the highly personal nature of their employment relationships and the level of hurt feelings that naturally arise when things go wrong. Unfortunately, many employers do not get objective legal advice on terminations because they see no need to talk to a lawyer about somthing that seems so obvious to them. That can be a costly mistake.

This case demonstrates the importance of obtaining specialized legal advice, preferably before the termination. Legal advice should not be reserved for “doubtful” termination cases but, as this case shows, objective legal advice is just as important where the employer firmly believes that dismissal is justified.

Obviously, with the benefit of hindsight, the Legion branch should have known that it did not have legal grounds to dismiss the plaintiff in this case.  That would have avoided the whole long and expensive mess. It certainly should have been more cautious in its statements to EI and should never have made the statements it did attacking the employee’s honesty and integrity, even at a closed general meeting. They should have sought and heeded legal advice, even if it was not what they wanted to hear at that particular time.

The result of the case is that the fired employee is still working at the Legion, with 18 months back pay in his pocket, plus $60,000 in damages, interest and costs for defamation. The Legion, of course, had to bear its own legal costs throughout, both before the Labour Standards Tribunal and in the Supreme Court. My guess would be that, altogether, it probably cost the Legion something in the neighborhood of $100,000 or more.

For more information about this case and how it might apply in your personal situation, please contact me for advice.

*Michael Coyle is an experienced employment-labour relations lawyer and a neutral mediator and arbitrator based in Kentville, Nova Scotia. Information provided in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at michael@mvc-private-law.ca  For more information and tips on employment and labour law issues, visit his website at www.michaelcoyle.ca

©Michael V. Coyle, 2012