AFM231 Chapter Notes - Chapter 21: Substance Abuse, Disability Insurance, Fiduciary

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Chapter 21: Terminating the Employment
Relationship
Ending the Relationship
Can come to end…
- Employee resigns or leaves at the end of fixed-term employment contract
- When employer summarily dismisses, or fires employee
- Employer gives notice of termination
- Employer acts in manner that employment relationship becomes untenable
It is implied that termination can be given without notice if there is “just cause”  can be override
by collective or individual employment contracts; also subject to exceptions to teachers, police
officers, firefighters, etc.
Also implied that an employer may terminate employment contract by giving reasonable notice
of termination. – No requirement of cause – override by employment contract; provincial and
federal employment standards legislation provides for notice periods and procedures on
dismissal – this sets the minimum.
Dismissals for Just Cause
Just Cause: employee conduct that amounts to a fundamental breach of employment contract
Exists when employee found guilty of one or more of following:
1) Serious misconduct
2) Habitual neglect of duty
3) Incompetence
4) Conduct incompatible with duties or prejudicial to employer’s business
5) Willful disobedience in a matter of substance
Typically very difficult to prove.
Serious Misconduct
Intentional, harmful conduct of the employee that permits the employer to dismiss without
notice.
- Cumulative effect must be such that there is a serious impact on the employment
relationship
- Employer has duty to warn employee and give an opportunity to improve
-Progressive discipline policy: a system that follows a sequence of employee discipline
from less to more severe punishment
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oEmployer applies discipline for relatively minor infractions on a progressive basis
oLast step, dismissal
oOral or written warnings
- Single act of misconduct can justify dismissal if sufficiently serious
oNature and context of any dishonesty must be considered – dishonesty in itself
isn’t good enough
- What constitutes serious misconduct may be affected by workplace policies
-Condonation: employer behaviour that indicates to the employee that misconduct is
being overlooked
- If condonation is established then difficult to argue just cause for termination
- Condonation occurs only if the employer is fully aware of the wrongful behaviour
Habitual Neglect of Duty
Persistent failure to perform employment duties.
- Absenteeism must be without employer’s permission or authorization and be more than
an occasional absence
- Important whether warnings were issued, any excuse for absence, and whether the
absence occurred at a critical time for the employer
- Difficult to establish lateness than absenteeism – court will consider whether employee
had a valid excuse, there were warnings concerning lateness, and whether the time was
ever made up
Incompetence
Lack of ability, knowledge, or qualification to perform employment obligations.
- Employer must be more than merely dissatisfied with an employee’s work
- There must be actual incompetence
- Substandard level of performance must be apparent after giving warning and opportunity
to improve
- Employer must establish fair and reasonable performance standards against which to
measure performance
- Employee can say: inadequate training, insufficient volume of business, inexperience,
and condonation of performance problems
Conduct Incompatible
Personal behaviour that is irreconcilable with employment duties or prejudicial to the employer’s
business.
- Example: accepting lavish and inappropriate gifts from clients
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- Conduct isn’t limited to on the job – can be outside
- Conflict of interest would also count
Willful Disobedience
Deliberate failure to carry out lawful and reasonable orders.
- Single act unless serious won’t constitute dismissal
- Serious like not attending an impt meeting or refusing to follow important safety rules
- Employer expects employee to carry out orders without extended debate and with
respect
- Employer justifies termination to those who fail to meet standards depending on
oEmployee was provoked
oEmployee was upset
oWas a moment of temporary anger
Other Causes
- Harassment
- Disruption of corporate culture
- Consumption of alcohol or drugs in workplace
- Drug abuse
Each situation needs to be analyzed on its facts and examined in relation to whether
- Conduct was a single act
- Conduct was condoned in some manner
- Employee had a disability
- Employee had been warned about conduct and the consequences of failure to improve
Non-cause and Near Cause
- If not just cause, employer has to give notice or pay in lieu of notice
- Period of notice will either be term agreed upon in employment contract, period specified
in employment standards legislation, or reasonable notice (period of time for an
employee to find alternative employment prior to dismissal)
o“reasonable” – based on age, length of service, availability of employment, and
status of employee
- Based on Dowling v Halifax – engineer should have been entitled 24 months got docked
to 6 months of notice because of inappropriate conduct – court didn’t allow any
justification because of near cause
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