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Lecture 8

LAW 529 Lecture Notes - Lecture 8: International Brotherhood Of Teamsters, The Employer, Wrongful Dismissal


Department
Law and Business
Course Code
LAW 529
Professor
Kristyn Scott
Lecture
8

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Chapter 15: Dismissal without Cause
Intro:• An employer does NOT need just cause to dismiss an employee (unionized
situations will be covered separately).• An employee may be dismissed as long as the
employer provides notice or pay in lieu of notice.• Failure to provide either (notice or pay
in lieu of notice) is called “wrongful dismissal”.• Employee may sue for wrongful
dismissal damages under the common law, but not reinstatement.Introduction, cont’d
•Length of notice may be set out in an employment contract.•If an employment contract
lacks a provision that governs notice of termination or if such provision is unenforceable,
an employer has an implied duty to provide reasonable notice of termination or pay in
lieu of notice under the common law.•This duty exists unless: – There is a just cause for
dismissal – covered in Chapter 14; – The contract was frustrated (Demuynck v. Agentis)
PG 400 for frustration of contract Dismissal without Cause: Introduction
Remember: Dealing here with situations where an employment
contract lacks a provision that governs notice of termination or the provision is
unenforceable.
In these situations, an employer has an implied duty to provide
reasonable notice of termination (or pay in lieu of notice) under the common
law.
If the employer does not fulfill this obligation, they have “wrongfully
dismissed” the employee. Dismissal without Cause: What is Reasonable
Notice? Need to consider unique circumstances of each particular employment
relationship. Key factors (Bardal vs. The Globe and Mail): pg 403 summary
for reference• Employee’s length of service;• Employee’s age;• Employee’s
position; • Employee’s compensation level; and•The availability of similar
employment given the employee’s experience, training and qualification.
Dismissal without Cause: What is Reasonable Notice?, cont’d
•Bain v. Insurance Corp.: The appropriate notice is not equivalent to
the time it takes to find a new job.
Jamieson case: unique skills limited options longer notice.
Minott case: No rule of thumb (e.g. one month per year of service - lots
of exceptions)
Antonio Di Tomaso case (ON Court of Appeal): The empirical validity
of the proposition that low-level, unskilled employees have an easier time finding
alternate employment cannot simply be taken for granted, particularly in today’s
world.
Inducement (see Ch. 3)Dismissal without Cause: Working Notice or

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Pay in Lieu?
Employer decides – may combine both.
Providing working notice may seem more cost effective.
But there are some situations in which it is inappropriate: for
example, performance problems, sensitive information, work with public
(e.g. Elg v. Stirling Doors).
Employees must have an opportunity to undertake job search
during notice period.
Employers can still require reasonable attendance during working notice. Dismissal
without Cause: The Separation Package
Where an employer provides pay in lieu of notice, separation package
may consist of:
– Lump-sum payment; – Salary and benefits continuation; or –
Combination.
Advantages and disadvantages?
Employers should get the employee to sign a release, before making
any payments required under the common law. The Duty to Mitigate
Under the common law, but not under the ESA, an employee who has
been wrongfully dismissed has a duty to mitigate damages.
Employees must take all reasonable steps to find comparable
alternative employment during the reasonable notice period (objective test), to
limit the damages suffered as a result of a dismissal.
The employer bears the onus of proof: – There were comparable
jobs available during the notice period that were suitable for the employee; and
The employee did not make reasonable efforts to obtain on of those suitable jobs.
Evans v. Teamsters (SCC, 2008):
Evans was terminated after 23 years. He was willing to accept 12
months notice and 12 months pay. After 5 months of negotiation, employer
offered him his job back for the remaining 19 months. He refused, was dismissed
for just cause, and sued for wrongful dismissal.
SCC: Evans failed to mitigate because his refusal was not reasonable in
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