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Lecture 2

LAW 529 Lecture Notes - Lecture 2: The Globe And Mail, Wrongful Dismissal, The Employer


Department
Law and Business
Course Code
LAW 529
Professor
Pnina Alon- Shenker
Lecture
2

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Chapter 13
Statutory and common law consequences arise from a wrongful dismissal.
An implied term of the employment contract is to provide the wrongfully dismissed
employee with “reasonable notice” or payment in lieu.
The critical concepts of “just cause” and “reasonable notice” are determined by judicial
precedent (common law).
A Reminder!
o The onus is on the employer to prove, on a balance of probabilities, that it had
legal just cause to terminate the employee;
o Courts generally are reluctant to find just cause.
Various Consequences of an Employee Termination
o Termination for just cause;
The employer has no liability.
o Termination arising from frustration of contract;
The employer has no liability.
o Termination motivated by a prohibited ground of discrimination under the Human
Rights Code;
The employer has liability under the Human Rights Code.
o Termination without just cause.
The employer has liability under the Employment Standards Act
(minimum notice or pay in lieu and, perhaps, statutory severance) and at
common law (reasonable notice or pay in lieu).
Bardal Factors
At common law, an employee in Ontario who is terminated without just cause is entitled
to:
o Common law reasonable notice or payment in lieu, unless there is an agreement in
the employment contract for a prescribed severance payment;
o In all instances, at least minimum notice and, perhaps, statutory severance under
the ESA.
Bardal v. Globe & Mail Ltd., [1960] (ONHCJ) (Box 13.2)
o “. . . The reasonableness of the notice must be decided with reference to each
particular case, having regard to the character of the employment, the length of
service of the servant, the age of the servant and the availability of similar
employment. . . .
The factors for determining a terminated employee’s common law reasonable notice are:
o The employee’s age;
o The employee’s position;
o The employee’s length of service; and
o The availability of comparable employment.
Operative Legal Principle
o The older you are, the longer your period of employment, the more senior your
employment position, and the more difficult the employment environment, the
greater the notice (or payment in lieu) you should receive for the termination of
your employment.

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There is no judicially recognized formula or rule of thumb for determining the reasonable
notice period.
o Ref. Minott v. O’Shanter Development Company Ltd., p. 159
There is no ceiling on the reasonable notice period.
Other Factors
o Inducement
Chapter 14 Just Cause Termination
An employee may be terminated without reasonable notice, or pay in lieu, only for legal
just cause.
If there is no just cause, it is a wrongful dismissal.
o Either just cause or wrongful dismissal, there is no in-between anymore
For a wrongful dismissal, the employer must provide:
o Minimum statutory notice (or pay in lieu) under the Employment Standards Act;
o Statutory severance for certain prescribed employees under the Employment
Standards Act; and
o Common law reasonable notice.
An exception is an employment agreement that includes a mutually agreed-to and
enforceable severance provision.
Onus and Standard of Proof
The onus resides with the employer to prove there was just cause to dismiss the
employee.
The standard of proof the employer must satisfy is a balance of probabilities.
o The employer must present evidence satisfactory to the court that it was probably
justified in dismissing the employee.
Legal assumption is wrongful dismissal, you have to provide pay in lieu or reasonable
notice
Or you must PROVE you have just cause
The employee does not have to prove they’ve been wrongfully dismissed
There is no legally recognized middle ground (near cause) between a just cause dismissal
and a wrongful dismissal.
The “near cause” doctrine reducing the reasonable notice period as a consequence of an
employee’s blameworthy conduct was rejected by the Supreme Court. (Ref. Dowling v.
Halifax (City), [1998] SCC)
The Test
McKinley v. BC Tel, 2001 SCC (Box 14.1)
The courts adopt a contextual and proportional approach to determine if there is just
cause for dismissal:
o Was the conduct of the employee or failure to perform so offensive or
unacceptable that dismissal was justified?
Has to be serious or repetitive (warned them before), you cannot just say the employee
did something wrong
Appropriate forms of discipline, warning letters, suspension
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