January 6, 2015

In an entry on this site on November 7, 2014, we I linked to a blog post by Stuart Rudner that, among other things, reviewed a case out of BC dealing with the alleged wrongful dismissal of a man named Roe. The BC Court of Appeal has now reversed that decision and sent the case back for reconsideration.

The Court of Appeal held that the trial judge erred in his characterization of the misconduct that occurred giving rise to the termination. Recall that the plaintiff had admitted to giving away $70 in desert and beverage vouchers to his daughter’s volleyball team. While the trial judge found the breach to be trifling, the Court of Appeal found that the trial judge did not take into consideration the high degree of trust and responsibility the plaintiff had as a senior manager.

The Legal Post writes that the provisions of Canada’s Anti-Spam legislation (“CASL”) which will come into force on January 15, 2015 could impact employers with “bring your own device” policies in the workplace. The provisions of CASL coming into force concern requirements for the installation of software on computers and other electronic devices.

Fasken Martineau’s Northern Exposure blog covers a recent case concerning the payment of commissions during the notice period. Absent enforceable contractual language to the contrary, an employee who is terminated is entitled to all pay he or she would have earned during the notice period but for the termination. In this case, contractual language ruled the day and resulted in the employee being denied payment of commissions during the notice period except for those permitted by the contract. Now would be a good time to review your contracts and see whether commissions, bonuses, and other amounts would be payable during the reasonable notice period:

The termination of a junior spy three months before the end of his five year probationary period with CSIS was recently upheld by the Public Service Labour Relations Board:

Tamara Ticoll on the Stikeman Elliott Canadian Employment and Pension Law blog writes about cumulative misconduct justifying just cause termination.  The plaintiff had, over approximately two years, was disciplined for a variety of incidents including poor performance, serious misconduct, insubordination, incompetence, breach of company rules and conduct that was prejudicial to the employer’s business. In finding just cause existed for termination, the court wrote:

[96]              I am of the view that Easy gave Chopra ample verbal and written warnings of its dissatisfaction with his performance and conduct. It gave him every opportunity to improve his behaviour. Easy documented his behaviour and told Chopra he was required to correct it.

[97]              Chopra’s behaviour fell below any reasonable standard of conduct. The cumulative incidents were not minor or trifling. They affected the workplace as a whole.

[98]              Easy had just cause to terminate Chopra’s employment because of the performance issues set out earlier and in addition insubordination and conduct specifically designed to harm Easy, including spreading rumours that Easy was closing.

[99]              As Echlin J. stated it in Daley: “The conclusion that must be drawn in this instance is that the series of acts cumulatively do amount to enough ‘bricks to constitute a just cause wall.'” In my view there were sufficient bricks here to constitute a just cause wall.

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