Employee’s Appeal for Dismissal of His Wrongful Termination Action Rejected

by & Cristina Lavecchia, Editors, First Reference

The employee in this case appealed the dismissal of his wrongful dismissal action. One of the issues on appeal was whether the trial judge reversed the onus on the employee to prove just cause.

Background

The employee was employed as a production supervisor. After about 19.5 years of employment, he was terminated with cause because of a string of incidents, which included allowing 1,500 defective camshafts to be processed with “roping” marks during his shift and then lying to the employer about what had happened.

The employee sued the employer for wrongful dismissal and not receiving reasonable notice under the law.

The trial judge did not accept the employee’s evidence that he had carried out regular checks of the line and had instructed members of his team to do the same, nor his denial that the 1,500 defective camshafts had been produced during his shift. The trial judge did, however, accept the evidence that packers had brought the roping issue to the employee’s attention on three occasions during their shift. The trial judge deemed that the employee had lied about the roping issues that had occurred during his shift.

The trial judge decided that the employee’s failure to supervise and take any remedial steps once the roping problem was brought to his attention, combined with his dishonesty about what had happened, went to the heart of the employment relationship. As such, the trial judge decided that these facts, together with the employee’s earlier disciplinary incidents, established on a balance of probabilities that the employee had just cause to terminate the employee.

The employee appealed the trial judge’s decision.

The appeal

The employee’s appeal was dismissed and costs in the amount of $20,000 were awarded to the employer.

One of the issues on appeal was whether the trial judge reversed the onus on the employee to prove just cause. In support of his allegation, the employee noted the following sentence near the end of the trial judge’s conclusion: “On all of the evidence, the plaintiff [employee] has not met his onus that he was wrongfully terminated from his employment with the defendant [employer].”

In this respect, the Appeals Court agreed with the employer’s submission that the concluding sentence referring to “onus” must be read in the context of the entirety of the trial judge’s reasons.

[8] We agree with the respondent’s submission that this concluding sentence referring to “onus” must be read in the context of the entirety of the trial judge’s reasons. From the respondent’s written and oral submissions at trial, it is apparent that the respondent [employer] accepted that it had the onus to demonstrate, on a balance of probabilities, that it had just cause to terminate the appellant’s employment without notice or compensation in lieu of notice. In their submissions at trial, both counsel advised the trial judge that the respondent had this onus.

Moreover, in the eyes of the Appeals Court, the trial judge applied the correct analysis for determining whether just cause had been established, as set out by the Supreme Court of Canada in McKinley v. BC Tel, 2001 SCC 38 (CanLII), [2001] 2 S.C.R. 161, and as later referenced by this court in Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 2004 CanLII 43692 (ON CA), 246 D.L.R. (4th) 65 (Ont. C.A.) and Fernandes v. Peel Educational & Tutorial Services Limited (Mississauga Private School), 2016 ONCA 468 (CanLII), [2016] O.J. No. 3140.

The analysis itself does not reflect a reversal of the employer’s onus to the employee.

Another issue that was brought before the Appeals Court was whether the trial judge was biased against the employee.

In this respect, the Appeals Court referenced the “undisputed test for reasonable apprehension of bias” as summarized by the Supreme Court of Canada in the 2015 case Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General).

“what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude? Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?”

In support of his allegation of bias, the employee placed emphasis on the trial judge’s negative reaction to counsel’s failure to bring to the court’s attention a decision that questioned a procedural ruling that the trial judge had made earlier; describing his failure to bring the case to the court’s attention as “bad advocacy.”

Per the Appeals Court, the above exchange did not demonstrate bias on the part of the trial judge. The Appeals Court explained,

[17] …There is no evidence of inappropriate treatment by the trial judge of the appellant and his counsel. Criticism of counsel by the trial judge, as occurred here, or disagreement with the findings urged upon her by counsel, does not amount to bias or give rise to a reasonable apprehension of bias. The trial judge’s reasons for her findings are detailed and comprehensive, and amply supported by the record.

A few takeaways

As demonstrated in this case, when it comes to an employee’s wrongdoing, his or her severe dishonesty can be the breaking point, supporting an employer’s claim for just cause dismissal. As the Appeal Court noted, “The trial judge found that the magnitude of the total number of defective camshafts, which the appellant allowed to pass uncorrected during his shift, taken together with his subsequent dishonesty about them, was the culminating event that formed the primary basis for his dismissal for cause.” See paragraph 11 of the decision.

This said, employers should still be cautious when determining whether or not to claim cause for an employee’s termination. Circumstances in one case may not hold in another. Because the courts assess the individual facts of each case, it is difficult to clearly define what constitutes “cause.”

If the employer terminates an employee for “cause,” the employee is not entitled to notice, pay in lieu of notice or statutory severance pay (if applicable). However, the onus is on the employer to prove that an employee’s behaviour or conduct was so unacceptable that it justified dismissal without the required notice.

In Ontario, the Court of Appeal has recognized that serious misconduct, habitual neglect of duty, incompetence or conduct incompatible with duties or prejudicial to the employer’s business, or willful disobedience to the employer’s orders in a matter of substance may very well be “cause” for dismissal. In most cases, courts will look for the seriousness of the behaviour, the willfulness of the behaviour, and the employer’s corresponding behaviour, including consistent application of the rules and any previous condoning of such behaviour or conduct.

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