Tag Archives: just cause

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

 

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