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Lecture 5

LAW 529 Lecture Notes - Lecture 5: Wrongful Dismissal, The Employer, Condonation


Department
Law and Business
Course Code
LAW 529
Professor
Pnina Alon- Shenker
Lecture
5

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Lecture 5 – Law529 – 10/9/2015
Just cause dismissal
- Where dismissal is with just cause:
oNo advance notice or package is required (summary dismissal/employee summarily
dismissed)
- All or nothing: if you did something was not serious enough then you have no just cause but if
you did something really bad then they do
- Misconduct or incompetence so extreme that amounts to repudiation of the employement
contract
oEmployer is no longer bound by common law obligation of reasonable notice
- Needs good reason
- Decided on particular facts -> bad employee, or commits a crime, doesn’t come to work etc.
- ONUS OF PROOF ON THE EMPLOYER
oTo show on balance of probabilities that employee breached contract in fundamental
ways
- Objective tests:
oProportionality: any sanction must be proportional to the conduct to which it relates
Most misconduct or performance related incidents must occur more than once
Courts generally support progressive discipline
Written warnings/final written warnings
Unless express/implied terms in employment contract allowing form of
discipline, a suspension without pay may constitute CD under common law
oContextual: nature and seriousness of alleged offense
Looks at employment relationship including: length of service, performance and
performance and disciplinary history and any mitigating circumstances
Personal factors that influenced the conduct or performance
Procedural fairness
Employer may improve chances of demonstrating just cause if they
follow the rules of procedural fairness
Investigate allegations in good faith
Confidential
Inform employee of allegations
Give employee full opportunity to explain conduct and respond to
allegations
Make sanction proportionate to offences
Act in good faith
Should be honest
Before grounds for dismissal
- Stating grounds of dismissal
oEmployer may dismiss employee without alleging just cause and later when employee
sues for wrongful dismissal asserts that it actually had a just cause
oJustification for dismissal can be based on facts discovered after dismissal (after
acquired cause)
- Condonation: when employer who discovers an employee’s misconduct or poor performance
fails to respond within a reasonable time
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