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Employment Case Law

Finding Cause
In Geluch v. Rosedale Golf Association, 2004 CanLii 14566 (ON SC), the Court held hat the “employer must prove cause on the balance of probabilities, based on a finding of real incompetence or misconduct, rather then simple dissatisfaction.”

Standard of Cause
In the case of Lowery v. Calgary (City of), 2002 ABCA 237 (CanLII), it states that an employer must use multiple alleged incident to find cause, the court cites Atkinson v. Boyd, Phillips & Co. Ltd. 1979 CanLII 478 (BC CA), (1979), 9 B.C.L.R. 225, which gives guidelines with 4 points
  1. The employee was given express and clear warnings about his performance.
  2. The employee was given a reasonable opportunity to improve his performance after the warning was issued.
  3. Notwithstanding the foregoing, the employee failed to improve his performance.
  4. The cumulative failings “would prejudice the proper conduct of the employer’s business."

Lateness for Cause
In the case of S.S. v. Huang & Danczkay Property Management Inc., 1999 CanLII 14865 (ON SC), it was found that in cases where lateness was cause for dismissal, the employer must demonstrate that lateness was prejudicial to it’s operations, or that it had warned the employee sufficiently to allow the employee to correct the behaviours and failure to do so has been treated as a repudiation of the employment agreement.

Prior misconduct
In the case of S.S. v. Huang & Danczkay Property Management Inc., 1999 CanLII 14865 (ON SC), the court recognized that misconduct of an employee that was not met wit a dismissal cannot then rely on that misconduct for future allegations. This was supported by the Ontario Court of Appeal in Nossal v. Better Business Bureau of Metro Toronto Inc. 1985 CanLII 1980 (ON CA), (1985), 19 D.L.R. (4th) 547 (Ont. C.A.), in which states an employer may not discharge an employee on the basis of previous misconduct that which was not previously met with a dismissal.

Mental Illness & Cause In the case of Rivest v. Canfarge Ltd., 1977 666 (AB QB)., the plaintiff had suffered mental strain because of job duties and responsibilities. The plaintiff missed three consecutive workdays and as a result was terminated. The court held that plaintiff suffered from a real and substantive illness and as such the defendant could not dismiss the plaintiff without sufficient notice.
Source 1, Source 2

Poor Economic Conditions Not Just Cause
According to Morris v Sperry Inc. an employee returned to work after medical leave and found out her position had been filled, while the employer had not created a new position for the employee due to economic reasons. It was found that the employer did not have just cause for dismissal because of economic reasons.

Workplace Violence (Slap) not Just Cause
In the case of Shakur v. Mitchell Plastics, 2012 ONSC 1008 (CanLII), a Division of Ultra Manufacturing Ltd. it was found that Shakur, which had a clear disciplinary record, was not dismissed with just cause for his actions of slapping another co-worker during a verbal altercation. Ontario Superior Court Judge David Broad went states that Shakur actions however improper they may have been did not justify an outright dismissal. Shakur Award = four and a half months pay in lieu of notice.

Workplace Violence (Push) not Just Cause
In the case of
Gjema v. Mercury Specialty Products Inc., 2012 MBQB 83 (CanLII) it was found that Gjema, which was the manager, was dismissed without just cause for his actions of pushing a defiant and aggressive subordinate. It was found that a dismissal was overly excessive and disproportionate. Gjema Award = year’s severance pay.