The ABC’s of Wrongful Dismissal

1. The ABC’s of Wrongful Dismissal Presented by: Grace Garcia Cooke, Lawyer, ASBA Legal Services Angela Town, Lawyer, ASBA Legal Services Janice Boiko, ASBIE Program Director, Lloyd Sadd Insurance November 7, 2013

2. Introduction • Concentrating on non-union positions • How can Board protect its interests and lessen chances of wrongful dismissal action

3. What governs the employment relationship? • Statutes / Regulations • Collective Agreement (if any) • Contract of Employment • Policies of Employer may become part of the contract of employment • The “Common Law”

4. Bound by your own procedure? Faced with a potential discipline/termination issue… • Before asking any questions about what is generally a “fair” process for investigation / termination … what is YOUR chosen procedure • Follow it. Fix it later. (…or ideally…Fix it NOW…before you are faced with a potential discipline/termination issue !)

5. Dunsmuir v. New Brunswick • Overturns case suggesting that public body employers owe “public law” duties of fairness/natural justice to their employees • Unless imposed by statute, legal duties upon termination governed by contract / same as regular employer -- not judged in context of public law

6. Termination • Employment may end: • At end of specified contractual term • As provided for in the contract • For “just cause” • Upon the provision of “reasonable notice of termination, or pay in lieu thereof”

7. Termination Clause • Contract can specify the necessary notice or pay in lieu of notice, required to terminate • Cannot contract out of Employment Standards Code

8. Can you rely upon your termination clause? • Is the written contract valid? • Where dealing with term contracts, failing to carefully administer successive terms can lead to unforeseen results!

9. Reasonable Notice • Purpose • Employment Standards Code, R.S.A. 2000, c.E-9 (“ESC”) • Provincial statute • Starting point – bare minimum • Section 56: • 1 week if greater than 3 months, but less than 2 years

10. Reasonable Notice • Section 56 (cont’d) • 2 weeks if 2 years or more, but less than 4 years • 4 weeks if 4 years or more, but less than 6 years • 5 weeks if 6 years or more, but less than 8 years • 6 weeks if 8 years or more, but less than 10 years, • 8 weeks if 10 years or more • Written termination notice or employee termination pay

11. Reasonable Notice • Common Law • Case by case • “one month per year of service” – not determinative • Determination is a difficult task • must consider Bardal Factors • Character of the employment • Length of service • Age of the employee

12. Reasonable Notice • Bardal Factors (cont’d) • Availability of similar employment, having regard to experience, training and qualifications of the employee

13. Progressive Discipline • A matter of communicated expectations and results • Clear • Consistent • Corresponding evaluation and monitoring • While seeking rehabilitation of the employee’s conduct/ behaviour/ performance, build a file of progressively more serious discipline • rely upon in the event of termination of employment

14. Progressive discipline as a principle…. • Makes you consider whether the employee can be rehabilitated • Makes you consider what level of discipline is appropriate given incident and history • Makes you paper the file • Gives you flexibility – disciplinary response

15. Progressive Discipline as a strictly worded policy... • Can be just another stick for you to get beaten with …

16. How can the past bite you at firing time? • Does your file show ongoing problems? • Does your file show your ongoing attempts to rehabilitate the issue? • Did your failure to mention the problems condone the behaviour? • Do your yearly performance reviews contradict the problem you are alleging?

17. Just Cause • If just cause, then no obligation to provide reasonable notice or payment • Employer has burden of proof – a “heavy burden” • What to prove? • Employee is guilty of misconduct sufficiently serious to justify dismissal on a summary basis.

18. Just Cause • Fact specific • Not mere inefficiency or dissatisfaction with performance • Must consider both conduct of the employee and conduct of the employer • Single incident misconduct – an exceptional circumstance

19. Just Cause • Considerations: • What was the nature of the conduct? • Actions incompatible with duty? • Actions intentional and deliberate? • Consequence of employee’s actions? Prejudice the safe and proper conduct of the employer’s business? • Proportionality? • Reasonable excuse?

20. Just Cause • Considerations (cont’d) • Did the employer have a duty to warn? • Progressive discipline • Awareness of the rules? • Opportunity for employee to correct or improve • “magic words” – clear and unequivocal • Paper it

21. Just cause • Considerations (cont’d) • Was there a condonation of the action(s)? • Past misconduct overlooked or tolerated? • Employee has burden of proof • Examples – cause or no cause? • Employee directed explosive, arrogant, loud cursing language and attitude towards his boss

22. Just Cause • Examples (cont’d) • Manager sent a memo questioning the competence of the president and accused him of acting illegally and perhaps dishonestly • Six year employee with good work record swore at and threatened supervisor, coupled with trivial theft and insubordination

23. Just Cause • Is an allegation of cause worthwhile?

24. Additional Remedies • Damages for wrongful dismissal may be increased due to employer conduct in termination causing distress • Mere termination without cause is not itself enough to result in increased damages • Punitive Damages: Manner of termination is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive”

25. Higginson v. Babine Forest Products Ltd • Employer provides no notice, and makes allegation of cause without merit • Jury convinced allegation of cause only made to try to minimize notice • Result – significant punitive damages for improperly alleging cause • $800,000 damage award • Largest punitive award in Canadian employment law history.

26. What is “Constructive Dismissal”? • You can dismiss your employees without intending to ….

27. Constructive Dismissal (cont.) • Where an employer makes a unilateral substantial change to a fundamental term of the employee’s contract …

28. Constructive Dismissal (cont.) • Such that the employment is no longer what was contemplated in the contract between the parties …

29. Constructive Dismissal (cont.) • The employee has a right to state that the employer has repudiated the contract of employment, and has essentially terminated the employment without any notice (a.k.a. equivalent to a wrongful dismissal)

30. Privacy • Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c.F-25 (“FOIP”) • S.17(4)(e) – presumption of unreasonable invasion for disclosure of “employment history” • S.17(2)(e) – may disclose classification, salary range, discretionary benefits or employment responsibilities • S.40(1)(d) – disclose with written consent

31. Privacy • FOIP (cont’d) • S.38 – Duty to protect personal information • Necessary to perform your job or just curiosity? • Appeal process and potential bias

32. Privacy • School Act: • Authority to disclose in financial statements (s.148): • Remuneration, benefits, allowances and expenses paid to board members • Remuneration, benefits, allowances, expenses, performance bonuses and other monetary incentives paid to superintendent and secretary-treasurer

33. Human Rights • S. 7(1) of the Alberta Human Rights Act: 7(1) No employer shall • refuse to employ or refuse to continue to employ any person, or • discriminate against any person with regard to employment or any term or condition of employment because of race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person.

34. Human Rights • Duty to accommodate to the point of “undue hardship” • Financial costs • Size and resources of the employer • Disruption of operations • Morale problems of other employees • Substantial interference with the rights of others

35. Human Rights • Duty to accommodate to the point of “undue hardship” (cont’d) • Financial costs • Interchangeability of work force and facilities • Health and safety concerns • Accommodation must be reasonable not perfect

36. Protecting Your Interests • DON’T

37. Protecting Your Interests DO • Good contracts – legally sound protective provisions • Honest & detailed employment file • Investigate / Gather your evidence about the problem / Fair opportunity to respond • Obtain a prior legal opinion