Resignations to-dos & characteristics (3) & Elements (2)
to-dos: ER accepts EE resignation in writing, owe outstanding wages & benefits
characteristics
- EE voluntarily intends to end relationship
- EE acts in a manner reasonable person would believe they resigned
- resignation inferred from EE’s conduct: intent to resign must be clear
Elements:
- voluntary intention “clear & unequivocal”
- actions to follow through on expressed intention
When it is NOT resignation (3)
- ER informs EE will be fired unless resign –> procured under duress & invalid
- EE is absent from work –> told they will be deemed to have “quit” unless return by a specific date
- EE storms out saying I quit - not quit unless EE confirms by remaining away / returning equipment after reasonable period of time to calm down
Wrongful resignation
dos (5)
- do not fire an EE who resigns- wrongful dismissal
- may pay in lieu of attendance
- EE has legal obligation to provide reasonable notice of resignation (no rule of length)
- wrongful resignation actions against EEs are rare
- ER should include notice of resignation requirements in EC
Mandatory retirement & exception
No mandatory retirement in BC
Exception- BC Human Rights Code allows
- bona fide retirement
- pension plan that is bona fide (policy connected to work & implemented in good faith — impossible to accommodate EEs w/o undue hardship)
- Most registered retirement plans are acceptable under BC human rights law because of bona fide group / EE insurance plan’s requirement
Just cause termination def
An ER must have either “just cause” for dismissal or provide reasonable notice / pay in lieu (dismissal w/o cause)
Just cause does NOT mean having a good reason for terminating EE but-
if EE breached EC in a FUNDAMENTAL way that ER is no longer bound by it?
- difficult standard to meet
- decided case-by-case supported by legal precedent
All or nothing
- no reduction in notice period/ pay in lieu if discharge doesn’t meet the bar for just cause
Onus of proof civil vs criminal
ER must establish:
- Civil: balance of probabilities
- Criminal: beyond reasonable doubt
Evidence must be clear, conclusive & convincing
Sanctioning misconduct musts (4)
Considerations (4)
Musts
- ER must respond in measured & proportional way
- look at alleged misconduct in CONTEXT of overall employment relationship
- a one time incident of theft or sexual assault may warrant summary dismissal
- most misconduct / performance related problems occur more than 1 time look at considerations
Considerations
- context
- nature of misconduct
- seriousness
- context of overall employment relationship
Procedural fairness “process” (3)
- investigate an alleged breach of EC thoroughly, promptly in good faith & confidence
- give EE full opp to respond to allegations
- may be a reasonable explanation
- may be mitigating circumstances
- how EE responds to allegations matter - consider the misconduct
- planned / deliberate?
- EE exhibited remorse?
- assess misconduct in context of EE’s previous disciplinary & performance records
Dismissal practicalities:
- can (3)
- safer to do (3)
- can dismiss an EE without just cause
- may later assert had just cause at time of dismissal
- may justify dismissal based on info acquired later
safer to:
- dismiss with cause & still provide payment as a gesture of goodwill
- clarify in writing: payment is without prejudice
- may help avoid litigation if amount is similar to what EE could be awarded
Just cause dismissal Summary (10)
- EE should know what is expected by ER
- EE should be advised of ER dissatisfaction & know his/her job is in jeopardy
- cumulative causes may justify dismissal without notice
- mere inadequacies / errors in judgement are NOT sufficient
- higher standards for positions of public trust
- willful disobedience may justify dismissal
- may rely on grounds discovered after dismissal, but not conduct after dismissal
- conflict of interest may justify dismissal
- employer is entitled to determine rules as long as they are not illegal, dishonest, or dangerous
- EEs may be terminated for cause while on sick leave
Dishonesty:
a- historically
b- now
c- dealing with (3)
a. any act of dishonesty constituted just cause
b. a contextual approach is applied - dishonesty must undermine CRUCIAL element of trust in employment relationship to constitute just cause
c. 1. provide clear/written rules
2. get the facts right
3. if the allegations can’t be proven, provide reasonable separation package
Insolence & insubordination
a. normally
b. Mothersele case
c. Henry case
a. normally a pattern of insubordination / insolence must be shown but context matters
b. single act of insubordination could provide just cause (security threat)
c. cooling-off period required or wrongful dismissal - like 5-6 times “if you want to fire me, go ahead” then fired.
Incompatibility
a. definition
b. Essery Case
c. Pliniussen case
Can blogging get you fired?
a. Definition
often too vague to constitute just cause for dismissal - not “fit in” / have personal habits considered incompatible with dom work culture
b. Dismissal justified: hairdresser had greasy hair, smoke and neglected appearance
c. Prof dismissed after being convicted of insurance fraud - dishonest conduct could harm uni’s reputation
Yes - if tarnished business’ good name/reputation
Disobedience
- best way to deal with
- to be misconduct must (3)
- single act of disobedience best with progressive discipline
- must
a. be deliberate
b. involve no misunderstanding
c. cause substantial harm to ER
Conflict of interest
- implied duty?
- moonlighting
- EEs have an implied duty of faithfulness or loyalty to ER
2. moonlighting: just cause only where it harms ER’s interests
Absenteeism & lateness
consider (6)
- length of service
- frequency of absence or lateness
- whether began suddenly or has been chronic
- reasons given by employee
- whether absence or lateness harms ER
- whether attendance policy is consistently enforced
Absences result from a disability
- must accommodate EE up to the point of undue hardship
- if no realistic chance EE will return to work on regular basis
a. dismissal may eventually be necessary
b. look at ER’s circumstances
c. EE’s prognosis & attendance record over time
d. permanent illness could result in frustration
Sexual harassment & discipline
- progressive discipline is usually appropriate exc. serious cases dismissal for just cause may be justified
a. termination justified: denied allegations that he kissed staff & described porn using sexual gestures
b. termination justified: sexualized conduct & inappropriate conduct at off-site business function - allegations workplace culture tolerated sexual conduct - director in power relationship & had responsibility to temper behavior
Intoxication
- type of discipline appropriate
- context
- progressive d. if violates policy and if EE
- not addiction disability
- not working in safety-sensitive area - a. intoxication harm the business?
b. how intoxicated EE been handled in past?
c. safety-sensitive position?
d. was EE’s performance affected?
e. is there a policy or employment contract term that addresses this issue?
Substance abuse & accommodation
- discipline
- must dos (3)
- ER cannot discipline addicted EE for substance abuse
- must be accommodated until undue hardship
a. provide rehab services
b. allow time off so EE can attend services
c. if rehab unsuccessful, undue hardship may be reached at some point
incompetence
A. must dos (5)
B. ER must establish (5)
C. threshold of incompetence
A. must
- cases decided on facts
- serious misconduct / incompetence, not displeasure
- ER must prove balance of probabilities
- EE’s performance must be gauged against objective standards
- if performance is GROSSLY deficient, warnings and notice not required
B. ER must establish
- level of performance required
- requirements communicated to EE
- instruction / supervision provided to help EE meet standards
- EE was incapable of meeting standards
- EE was warned it would result in dismissal
- threshold of incompetence is lower where there are many warnings
Incompetence
how to show adequate warning has been given? (5)
ER must show:
- ER had reasonable objective standards of performance
- EE failed to meet standards
- EE had several warnings
- EE had reasonable period of time to correct situation
- ER may not condone the behavior & later rely on that behavior to discharge EE
Condoned behavior is relevant if EE fails to respond after appropriate warnings
reasons that will not constitute just cause -
ER prohibited from dismissing EE for asserting any of these rights (5)
- BC Human Rights Code
- Employment Standards Code
- BC Occupational health & safety reg
- Workers’ compensation Act
- Labor relations code
