A recent decision from British Columbia is a reminder of how hard it is to establish just cause to terminate employment without notice in Canada and why having clear policies and a well-documented discipline record is vital before discharging for cause.

In Re Dr. Paula Winsor-Lee, the British Columbia Employment Standards Tribunal considered the appeal of a decision of a Director of Employment Standards who found that an employee of a dental office who texted during work and during a staff meeting was not discharged for just cause. The tribunal refused to overturn the director’s finding that the termination was without just cause, and therefore, the employer was required to pay wages and a penalty for breaching the Employment Standards Act.

The employee in question was discharged for texting during work, including in front of patients and during a staff meeting despite being warned not to do so. She also had one previous discipline event for not participating as a “team worker” and not taking responsibility. That written warning was issued several years before her discharge, but it indicated that she could face further discipline up to and including termination if she did not improve her performance.

The tribunal outlined the following principles for just cause under the Employment Standards Act—which are similar to the principles for just cause at common law:

1. The burden of proving the conduct of the employee justifies dismissal is on the employer;
2. Most employment offenses are minor instances of misconduct by the employee not sufficient on their own to justify dismissal. Where the employer seeks to rely on what are in fact instances of minor misconduct, it must show:
   • A reasonable standard of performance was established and communicated to the employee;
   • The employee was given a sufficient period of time to meet the required standard of performance and had demonstrated they were unwilling to do so;
   • The employee was adequately notified their employment was in jeopardy by a continuing failure to meet the standard; and
   • The employee continued to be unwilling to meet the standard.
3. Where the dismissal is related to the inability of the employee to meet the requirements of the job, and not to any misconduct, the Tribunal will also look at the efforts made by the employer to train and instruct the employee and whether the employer has considered other options, such as transferring the employee to another available position within the capabilities of the employee.
4. In exceptional circumstances, a single act of misconduct by an employee may be sufficiently serious to justify summary dismissal without the requirement of a warning. The Tribunal has been guided by the common law on the question of whether the established facts justify such a dismissal.”

As the tribunal noted, the ultimate question is whether the employee’s misconduct has fundamentally undermined the employment relationship.

In this case, the director determined that was not the case based on the evidence before it, and the tribunal refused to find that decision was unreasonable. The tribunal’s decision made note of the limited history of recorded discipline from several years prior to the termination, and the finding that the single incident of texting during a staff meeting was not so egregious that it justified summary dismissal.

The key messages for employers from this decision and others like it are:

1. Employers that intend to discharge an employee for his or her discipline history, may want to have a clear, written record of multiple incidents in order to demonstrate a cause case based on “cumulative” events (i.e. many small incidents of discipline). It also may help if the relevant incidents were recent and timely.
2. For a single incident to constitute just cause, this ruling shows that the relevant incident would need to be very serious.
3. In order to justify an employee’s discharge for repeated breaches of policies, employers can demonstrate that they explained those policies and applied them clearly and regularly to employees. This ruling shows that merely having a written policy is not very useful unless an employer can demonstrate that employees were made aware of the policy, trained on it, and that it was consistently enforced with discipline before a culminating event.

Written by Michael Comartin and Shir Fulga of Ogletree Deakins.

© 2019 Ogletree, Deakins, Nash, Smoak and Stewart, P.C.