CANADA Law and Practice Contributed by: Christopher Pigott, Rachel Younan, Jacob Wagner and Felisha Jagiah, Fasken
in addition to any notice or pay in lieu thereof to which the employee is entitled. In Ontario, employment standards legislation provides that an employee who has worked for the employer for five or more years is entitled to severance pay if the employer has a payroll of at least CAD2.5 million or has severed the employment of 50 or more employees within a six-month period owing to a total or partial closure of the business. The amount of severance pay is calculated by multiplying the employee’s regular weekly wage by the number of years of employment. The maximum amount of severance pay required to be paid in Ontario is 26 weeks. Mass Termination Employers are not required to seek government advice or approval for implementing a dismissal or mass lay-off. However, employment standards legisla - tion in most jurisdictions requires that advance writ - ten notice be provided to an applicable government authority prior to implementation of a mass lay-off. Such notice provides the local government with the opportunity to offer employees various forms of sup - port, if warranted. 7.3 Dismissal for (Serious) Cause At common law (and civil law in Quebec), an employee may only be terminated without notice – or pay in lieu thereof – if just cause (or serious reason) is estab - lished. Although there is no definition of “just cause” at common law, or “serious reason” at civil law, courts will generally find just cause where an employee’s misconduct causes a breakdown in the employment relationship and amounts to a repudiation of a fun - damental term of the employment contract. Acts of misconduct such as theft, fraud, disobedience and serious breaches of employer rules or policies will often be found to amount to just cause. By contrast, termination for poor performance will rarely amount to just cause. Determining Just Cause The determination of whether an employer does in fact have just cause is a fact-based analysis and is determined on a case-by-case basis, having regard to the misconduct at issue as well as to mitigating factors such as lengthy service. Canadian courts
require a contextual approach and the application of the principle of “proportionality” in any determination of cause. Courts will generally examine the nature and circumstances of any misconduct to determine whether an effective balance was struck between the severity of the employee’s misconduct and the employer’s imposed sanction of termination. Gener - ally, serious misconduct is required and a single inci - dent of misconduct or mistake will not give rise to cause for termination of employment. Statutory Mechanisms to Challenge Termination In addition to civil actions before the courts, employ - ees may resort to statutory mechanisms to challenge an employer’s termination. Statutory claims may be subject to a higher standard for assessing just cause. By way of example, Ontario legislation mandates that an employer must prove “wilful” misconduct, disobe - dience or neglect of duty that is not trivial and has not been condoned by the employer in order to establish just cause for termination. Such a determination is always dependent on the factual circumstances of the particular case. In most cases, serious and deliberate misconduct is required and carelessness or inadvert - ent misconduct will not give rise to cause for termina - tion of employment. Evidence Required for Termination In virtually all unionised workplaces, employees can only be terminated where just cause exists. A simi - larly high standard exists for the termination of a non- unionised employee. In most cases, in order to find that the employer had just cause to terminate the employment relationship, a court will require evidence that an employee was provided with warnings to improve their conduct or performance. Employees must also be provided with a reasonable time to improve and, in some circum - stances, assistance from the employer to that end. In the exceptional circumstances of a serious single incident, termination for cause may be upheld without prior warnings. Courts will also consider whether an employer has investigated the alleged misconduct and provided the employee with an opportunity to explain. Finally, courts will not generally allow an employer to rely on
96 CHAMBERS.COM
Powered by FlippingBook