LEEL 570 Lecture Notes - Lecture 4: Nuance Communications, Punitive Damages, Summary Judgment
27 Jun 2018
School
Department
Course
Professor
April 4, 2018: Termination of Employment
Wrongful Dismissal
Last Class:
What about International Law?
(not considered in Wilson)
Back to the ILO: termination of employment recommendation, 1963, (No. 119)
(1) Termination of employment should not take place unless there is a valid reason for such
termination connected with the capacity or conduct of the worker or based on the operational
requirements of the undertaking, establishing or service
Non-binding instrument
Why not cite more recent instruments, including Convention No. 158?
ILO Termination of Employment Convention (No. 158), 1982:
Art 4: the employment of a worker shall not be terminated unless there is a valid reason for
such termination connected with the capacity or conduct of the worker or based on the operational
requirements of the undertaking, establishment or service
Not ratified by CAN
Wrongful Dismissal
2 cases raise discussions of termination by er FOR CAUSE
Unlike starting CML principle that termination with notice or in lieu of notice, in the context
of termination with cause, notice isn't required (but you still need to tell ee what's going on!)
McKinley v BC Tell (2001) (SCC)
Facts
oWas Mr. McKinley on disability leave when the temrination occurred?
oWhat were the er's initial claims?
oWhat did losing his job in this manner mean for Mr. McKinley, conretely? (para 7)
oWhat is the nature of the "just cause" allegation in this case? (para 11)
oWhat was the alleged dishonesty?
oWhat legal actions did the appellant take?
Assumption: if you cannot perform the work then the work is frustrated... but this is problematic
b/c of human rights law. So they changed legal strategy
Why is it a big deal for er to allege dishonesty?
o2 jurisprudential currents which show that once this is established, right to dismiss
oHigh standard for er
Issue: "whether ANY dishonesty, in and of itself, suffices to warrant an ee's termination, or
whether the nature and context of such dishonesty must be considered in assessing whether just
cause for dismissal exists"
McKinley refused to take beta-blockers
Two jurisprudential strands
find more resources at oneclass.com
find more resources at oneclass.com
1. The nature of dishonesty and the particular circumstances surrounding its occurrence must
be considered – contextual analysis – factual conclusions are drawn as to the existence of just cause
2. Dishonest conduct alone – regardless of its degree – created just cause for dismissal - the
conclusion must be reached as a matter of law – bearing in mind that the dishonesty required
an ee's intent to engage in deceitful conduct (para 46)
Judicial History
BC Supreme Court (Judge & Jury)
oParis J's instructions - "dishonesty of a degree incompatible with the employment
relationship" (para 20)
BC Court of Appeal
o"dishonesty within the K of employment as is the case alleged here, is cause and that
cause is NOT founded on the basis of the 'degree' of the dishonesty" (para 22)
Are the currents reconciled?
Iasobucci J at para 48:
oWhether an er is justified in dismissing an ee on the grounds of dishonesty is a question
that REUIRES AN ASSESSMENT OF THE CONTEXT of the alleged misconduct
TEST: "whether the ee's dishonesty gave rise to a breakdown in the employment relaitonship"
expressed potentially as:
oViolating an essential condition of the employment K;
oBreaching the faith inherent to the work relationship;
oDirectly inconsistent with the ee's obligations to the er
Nature of the assessment
Para 49:
1. Whether the evidence established the ee's deceitful conduct on a balance of
probabilities;
2. If so, whether the nature and degree of the dishonesty warranted dismissal (as a factual
matte r- not a mixed question of fact and law)
Framework proposed by the SCC: "porportionality"
Whether the dishonesty warrants the dismissal, becomes assessment of context and
proportionality
So deceitful conduct abstracted does not automatically become gorunds for dismissal
1. Just like breach of an employment obligation (Asurion) doesn’t nec rise to the level
which warrants dismissal
McKinley: normalization of the framework of dishonesty so that it too is assessed along a
framework that considers the context and proportionality
1. A breach doesn’t nec mean it's over
Application of the facts to the law
Para 64 - "from this evidence, a certain degree of inconsistency can be identified btwn what the
appellant appears to have been told by Dr. Graff, and the info he subsequently conveyed to his ers"
But conclusion at least re step 2: para 61 – the jury could reasonably and judicially have found
that "the appellant did not engage in dishonest conduct of a degree incompatible with
his employment relationship"
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
What about international law? (not considered in wilson) Back to the ilo: termination of employment recommendation, 1963, (no. 119) (1) termination of employment should not take place unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishing or service. Why not cite more recent instruments, including convention no. 2 cases raise discussions of termination by er for cause. Unlike starting cml principle that termination with notice or in lieu of notice, in the context of termination with cause, notice isn"t required (but you still need to tell ee what"s going on!) What did losing his job in this manner mean for mr. mckinley, conretely? (para 7) What is the nature of the "just cause" allegation in this case? (para 11) Assumption: if you cannot perform the work then the work is frustrated but this is problematic b/c of human rights law.
