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LAW 529 (123)
Chapter 14

Chapter #14-Dismissal with Cause.docx

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Law and Business
LAW 529
Pnina Alon- Shenker

Chapter 14 Dismissal with CauseOVERVIEW OF JUST CAUSE REQUIREMENTS ONUS OF PROOFDismissal without notice or pay in lieu of noticeis severe the courts are reluctant to reach this resultThe onus of proof is on an employer to show on a balance of probabilities that an employee breached an employment contract in a fundamental wayFor ERs just cause in an all or nothing propositionCourts have recently rejected this notion of NEAR CAUSE if an employees misconduct or incompetence fails to meet the threshold for establishing just cause and ER is obligated to provide reasonable notice or pay in lieu under the common lawPROPORTIONALITYTHE CONTEXTUAL APPROACHSeveral ways to protect employees at the time of dismissalconcept of PROPORTIONALITY that is the idea that any sanction must be proportional to the conduct to which it relatesThere are a few acts of misconductsuch as theft assault or a significant incident of sexual harassmentthat may warrant SUMMARY DISMILLAL even if they occur only once bc they go to the heart of the employment relationshipAnother related development is the adoption by courts of a CONTEXTUAL APPROACH in determining just causeIn pasts courts focused on the nature and seriousness of an EEs conduct to determine whether it warranted dismissal wo noticeUsing a contextual approach courts now consider the nature consider the nature and seriousness of al alleged offence in the context of the overall employment relationshipPROCEDURAL FAIRNESSAn ER improves it chances of successfully demonstrating just causeunder the common law if it follows certain rules of PROCEDURAL FAIRNESSHELPSTATING GROUNDS OF DISMISSALAn ER nay dismiss and employee wout alleging just cause and later when the EE sues for wrongful dismissal assert that it actually had j
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