November 7, 2014

In a blog post on First Reference, Stuart Rudner, author of “You’re Fired! Just Cause for Dismissal in Canada” (which is a book I keep on my shelf and I’m looking at it right now) talks about an interesting case he came across recently while updating his book. The case is instructive for the test and approach the courts will use in determining whether just cause exists for dismissal for dishonest conduct.

[3] The defendant has the burden of proving on a balance of probabilities that the plaintiff’s conduct justified dismissal. Both parties referred me to McKinley v. BC Tel, 2001 SCC 38, and they agree that this case is the controlling authority. In McKinley at para. 49, the court lays down a two-part test in cases of dismissal for alleged dishonesty. The trial court must determine: (1) whether the defendant has proved the alleged conduct on a balance of probabilities, and, if so, (2) whether the nature and degree of dishonesty warrants dismissal.

[4] On the second the part of the test, all of the circumstances of the case are to be examined to determine whether summary dismissal for dishonest conduct is a proportional response by the employer. The court clearly rejected the alternative “bright line” approach, that is, the approach that would have it that dishonesty in any measure amounts to just cause for dismissal. In his reasons for the court at para. 57, Iacobucci J. wrote:

. . . I favour an analytical framework that examines each case on its own particular facts and circumstances, and considers the nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship. Such an approach mitigates the possibility that an employee will be unduly punished by the strict application of an unequivocal rule that equates all forms of dishonest behaviour with just cause for dismissal. At the same time, it would properly emphasize that dishonesty going to the core of the employment relationship carries the potential to warrant dismissal for just cause.

  • The blog post: http://blog.firstreference.com/2014/11/07/assessing-whether-just-cause-is-warranted-a-yearly-review/
  • The case: (Roe v. British Columbia Ferry Services) http://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1712/2014bcsc1712.html

Slava Voynov is a defenceman for the Los Angeles Kings. He’s been on a paid suspension since he was arrested October 19, 2014 on suspicion of domestic violence. His lawyer is now making noise that it is time to reinstate his client since charges have not been laid. The NHL, for its part, said they would reinstate Voynov had he been cooperative with their internal investigation of the incident. Not surprisingly, Voynov declined to participate in that process probably on the advice of counsel because why help the police and prosecution build a case by chatting with your employer. Bit of a Catch-22 for him. It does raise some interesting questions for anyone conducting a workplace investigation.


 

The CBC is keeping quiet with respect to their own internal journalistic investigation of the Ghomeshi allegations. They’re also keeping mum on the internal workplace investigation being conducted by independent counsel citing promises of confidentiality to witnesses and alleged victims. Guaranteeing confidentiality can be tricky to reconcile with the respondent’s right to know the allegations against him.


A former NDP staffer, Fabiola Ferro,  has filed a law suit in the Ontario Superior Court against NDP MP Sylvain Chicoine seeking $191,000 in damages. Ferro alleges that Chicoine acted in a “tyrannical” manner in refusing to address harassment allegations:

According to the allegations filed in court, Ms. Ferro said she began working for Mr. Chicoine – the MP for the Quebec riding of Chateauguay–Saint-Constant – in Sept., 2011. She alleges that within a few months, she began to face harassment from another employee of Mr. Chicoine. The other employee is identified in the documents as David Cimon.


Nicole Byres with a post to the Miller Thomson Labour and Employment Law Blog about Investigations in the Workplace:

 

 

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