For Cause Terminations: An employee cannot be terminated for breach of a policy it doesn’t know exists

In the recent case, Attzs v Saputo Dairy Products Canada, 2020 ONSC 5512, the Court shed further light on the standard that an employer must meet in order to justify a termination for cause, which means a justifiable reason for terminating the employee. The consequences to an employer for terminating an employee for a justified reason is that the employer may not owe pay in for not providing enough notice to the employee. In this case, the plaintiff was employed as a warehouse attendant at the defendant employer’s distribution center. The employee was terminated without warning in February 2019 due to allegations that he was vaping on the premises. The employee had no prior warnings or reprimands for vaping or smoking on the premises. A wrongful dismissal lawsuit was brought against the employer and the employee was successful.

The defendant employer argued that the termination for cause was justified as the employee was caught on video vaping in the factory’s milk and dairy product storage facility. The employer believed that this conduct violated the company’s policy, regulations for food safety under the Food and Drugs Act, and the Smoke Free Ontario Act, 2017.

The plaintiff employee argued that his conduct did not justify a termination for cause and that a lesser sanction such as a warning or discipline was required.

The Court decided in favour of the plaintiff, finding that cause was not made out and that the employer was not justified in immediately terminating without warning. The legal test for cause terminations comes from the Supreme Court of Canada case from 2001, McKinley v B.C. Tel. Under this test, the court must ask: (i) is there evidence that the employee engaged in dishonest conduct? and (ii) if there is evidence, was the nature and degree of the dishonesty enough to warrant termination?

At the time of the employee’s termination, the employer’s warehouse policy expressly prohibited smoking inside the facility but was silent on vaping. It was found that the company’s policy had been recently changed to include vaping, but that the change was not publicized to the employees. As such, the plaintiff testified that he was not aware that smoking included vaping and the Court found that he had not engaged in wilful misconduct.

Additionally, the Smoke Free Ontario Act, 2017 was in effect at the time, but the employer did not put up the required signage under this Act to include the prohibition on vaping. The required signage was posted only after the plaintiff was terminated. Further, the plaintiff did admit to vaping on the date in question, but that two other individuals were vaping with him and were given warnings instead of a termination letter.

These findings led the Court to the conclusion that the employee should have been given other forms of discipline such as a warning or suspension instead of being terminated. The Court found that the nature and degree of the conduct was not severe enough to warrant an immediate dismissal and the employee was entitled to compensation for being wrongfully dismissed.

WHY THIS CASE MATTERS

Dismissal for cause is a high bar. Before you decide to terminate an employee for cause, proceed with caution. Be prepared to demonstrate to a Court that you have engaged in all other forms of lesser sanctions or discipline, ensure that this is documented in writing. You should also document how these methods have failed to cause the alleged dishonest conduct to cease. Employees must be given an opportunity to correct their behaviour before they are terminated and cannot be disciplined for violating a policy that was not clearly expressed.

Tags: employment litigation lawyer, employer lawsuit lawyers, wrongful termination lawyers

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