Module 6.4-6.7

Question 1

Dismissal without caus applies to

Answer 1

non labour nonunionized employees

Question 2

IF THE EMPLOYEE IS FIRED FOR JUST CAUSE………….

Answer 2

THEN NOT ENTITLED TO NOTICE OF TERMINATION!!!

Question 3

according to common law an employer may terminate an employment contract for just cause wihtout giing notice!!!!!!

Question 4

dismisaal without cause requrie what?

Answer 4

advance notice

Question 5

an indefintie contract of employment may be terminated by an employer for any reason as long as reasonable notice is given!!!

Answer 5

employer can either a) reqirue employee to continue working for the notice period OR b) give employee pay in lieu of wokring notice

Question 6

What is the appropriate perido of notice for employee

Answer 6

a) terms of employment contract
b) employments tandards code
c) common law!

common law period of reaosnable notice is typically much longer than stat minimum!

Question 7

hwo do we deermine if reasonable notice was given in dismissal without caus case?

Answer 7

1. review employment contract to see any express ters
   b) ESC minimum period of termination notice
   c) common law to identify potential period of reasonable notice of termination

Question 8

section 4 of ESC says you CANNOT PURPORT THE MINIMUM NOTICE AS PER THE STATUTORY DETAILS

Question 9

iF THERE is no contract or the contract is silent on notice period

Answer 9

then the employer needs to consider BOTh statuatory minimum and reasonable common law period

Question 10

termination of employment is dealt with in divison 8 of employment standards code

Question 11

notice of termination has to be PROVIDED IN WRITING & EARNINGS CANNOT CHANGE DURING THE TIME WHEN NOTICE IS GIVEN AND THE TERMINATION HAPPENS

Answer 11

cant alter matierla terms of contract

Question 12

secton 55.2 when are employers not required to give advance notice

Answer 12

• just cause
• employed <90 days
• fixed term cotnract <12 mos
• strike
• contract of employ is frustrated
• season employees

AND LOOK AT CODE FOR MORE EXCPETIONS

Question 13

in absence of contractual language to the contrary provding employee with min standards code notice will not satisfy employers common law obligaiton in most instances

Answer 13

incumbent on empoyer to find what constitues reasonable notic ein common law

Question 14

How is reasonable notice at common law determined?

BARDALL FACTORS

Answer 14

CASE BY CASE BASIS: REGARD CHARACTER OF EMPLOYMENT, LENGTH OF SERVICE, AGE OF EMPLYMENT, AVAILABILTIY OF SIMILAR EMPLOYMENTE ETC.

–BARDALL FACTORS–
1. Characterisitcs of employment: character, length of service, salary, history w employer, seniority
2. Emplyee characterissicts: age of employee, experience and skill set, health
3. outside factors: job market and avialability of reasonable alt employment

Question 15

NO BARDALL FACTOR IS DETERMINATIVE!! NO RULES OF THUMB!!

Answer 15

one month per year rul of thumb is EXPRESSLY REJECTED BY CANADIAN COURTS

Question 16

REVIEW THE MANY FACTORS TO SEE WHAT CONSTITURES REASONABLE COMMON LAW PERIOD OF NOTICE

Answer 16

12:38 https://d2l.ucalgary.ca/d2l/le/content/619780/viewContent/6544800/View

Question 17

Bardall factor: nature of position

Answer 17

Employees in higher level roles, OR HIGHLY SKILLED are entitles to longer periods of advance notice!

REMEMBER ONE FACTOR IS NOT DETERMINITIVE!

Question 18

Bardall factor: length of service

Answer 18

Often seen as dominating factor but courts establish that this is not the most important or the only factor

longer the service longer the period of notice

but one factor IS NOT DETERMINITIVE

Question 19

NO ABSOLUTE UPPER LIMIT OR CAP ON REASONABLE NOTICE BUT SOFT CAP IS 24 MOS

Question 20

Bardall factor: age of employee

Answer 20

older employees, those over 50 are entiteld to longer period of notice!!! this factors importance are going down thouggh

still a material factor

NOT DETERMINTIVE!

Question 21

Bardall factor: availability of similar employment

Answer 21

where an employee is discharged from aunique job based on employees straining and qualification COURTS REOCGNIZE THEY MAY HAVE AHARD TIME FINDING EMPLYOMENT SO THEY NEED LONGER PERIOD

very fact specific analysis

NOT DETERMINITIVE

Question 22

BARDALL FACTOR: relocated or recrutied employees

Answer 22

any employees that relocate at the request of aneemploye rneed a logner period of reasonable notice!!!! not withistanding shorter periods of service

not determinitive

Question 23

termination package

Answer 23

when dismissing an employee without cause, the employer must first consider:
- is it desirable to have the employee work till the end of the period [“working notice”]
- OR is it prefereable to have the emploeye leave immediately [“lump sum + + reasonable notice obligation”]/[“Regualrly pay the employees salarya dn benefits during period of notice while not requiring them to attend and work”]

Question 24

“lump sum + + reasonable notice obligation”] downside

Answer 24

if you get a job in the noticce period, employer has overpaid

Question 25

["Regualrly pay the employees salarya dn benefits during period of notice while not requiring them to attend and work"] nuance

Answer 25

employer can expressly state that if the employee finds employment during notice period these salary continuation payments will end

Question 26

employers are required to pay out ALL benefits during notice period as if they were working as normal

Answer 26

bonus, commision, stokcc, access to car/etc. if they recieved any of these benefits, these should be considered as part of termiantion package

Question 27

EMPLOYERS CAN NOT WITHOLD ESC MINIMUM IN EXCHANGE FOR RELEASE AGAINST WRONGFUL DISMISSAL SUIT, BUT CAN DO SO FOR COMMON LAW ENTITLEMENT

Question 28

TERMINATION FOR CAUSE S552A employee not entitled to notice if fired for just cause

Answer 28

just cause: misconduct inconsistent with the fulfilment of the express or implied conditions

Question 29

is establishing just cause an easy standard to meet?

Answer 29

nO, employer has the onus of proving cause on balance of probabiilities!!!!!!!

Question 30

test for dismissal for cause

Answer 30

court must determine whetehr the cause gives rise to a breakdown of the employment relationship ASSESMMENT OF CAUSE IS OBJECTIVE, CONTEXTUAL, AND PROPORTIONATE cause is a question of fact that varies with the nature of the employers business and the emloyees position of responsibility and trust

Question 31

just cause can be a big act, or smaller instance of misconduct that snowball over time (after given appropriate warnings)

Question 32

3 steps in seeing if employee disconduct warrants a dismissal

Answer 32

1. determine the nature and extent of the alleged misconduct: WHAT HAPPENED, WHAT DID EMPLY DO, HOW IS EMPLOYERS BUSINESS AFFECTED BY THE HARM 2. consider surrounding circumstances AND OCNTEXT! THE BIG PICTURE (employment history, employee role/responsibility etc.): IS THE SUMMARY DISMISSAL A PROPORTIONE RESPONSE TO THE MISCONDUCT! 3. detemine if the response to misconduct is balanced having regard to the facts: IS THE MISCONDUCT SO INCOMPATIBLE WITH THE TERMS OF THE EMPLOYMENT RELATIONSHIP THAT IT WARRANTS EMPLOYEE DISMISSAL - employees record of good conduct should be considered (is his out of character?) degree of misconduct required to justify dismissal is greater in the case of seniro employyes/long term employees

Question 33

Law acknowledges taht accumulatiomn of minor misconducts can also be incompatiable with employment relationship!! high elvel test: is the cumulative effect of minor misconduct created a fundamental breakdown in the relaitonship of both parties-> IF YES: cause is established BUT IF: WARNINGS ARE NOT GIVEN AND NOT GIVEN THE OPPORTUNITY TO CORRECT ACTIONS, THEN THESE DONT CONSTITUTE CUMULATIVE EFFECTS!

Answer 33

cumualtive events and progressive discipline

Question 34

CONDONATION: if employer creates lax working atmosphere, then employer cant fire employees for being lax

Answer 34

IF YOU CONDONE MISCONDUCT CANNOT LATER RELY ON THE SAME MISCONDUCT TO JUSTIFY DISMISSAL employee bears the onus of proving condonation -> warnings and progressive discipline steps are evidence that there has been no condonation!!!!!! KEY: FAIRNESS AND CONSISTENCY

Question 35

categories of conduct to justify dismissal: incompetence

Answer 35

employee continually underperofrms not just being dissatisfied with their work, but consistent poor performance against standards NEEDS TO BE FAIR! Typically one action of incompetence is not enough, and there needs to be consistent small acts of incompeence!! notes: -need warnings and opportunity to improve - single incodient of incompetence can justify dismissal in exceptional CIRCUMSTANCES - If employee lies about havign certain skills they can be fired

Question 36

categories of conduct to justify dismissal: dishonesty test

Answer 36

fishonesty does not auto lead to dismissal, but only constitues just cause when leads to relationship breakdown; violates condition of emloyment; runs against employees position of trust test: is there evidence of dishonest conduct on balance of probabiltieis, is the dishonesty severe enough to warrant dismissal? PUNISHMENT NEEDS TO FIT THE CRIME!!! dishonesty during investigation may tip scales

Question 37

categories of conduct to justify dismissal: insolence and insubordination

Answer 37

violates duty to obey SERIOUS/willful disobeince constitues repudiation of the employment contract!!! justifies termination without notice a single incident that destorys harmoinus relationship or which seriously undermines managemtns authrity will justify immediate dismissal less serious episodes warrant warning and immediate progressive discipline

Question 38

categories of conduct to justify dismissal: off duty conduct

Answer 38

if conduct interferes with employees ability to perform duties or results in serious harm to employers interst or reputation serious MISCONDUCT by persons in position of trust will justify dismissal without notice in cerrtain cases

Question 39

categories of conduct to justify dismissal: personality condlict

Answer 39

a conflient that truly disrupts employees ability to maintain harmonious workplace then may consittue for just cause note: progressive discipline is needed, warnings needed note: if employeees attitude is cuz of employers actions then this diminishes jsutification for dismissal without notice

Question 40

categories of conduct to justify dismissal: absenteeism and lateness

Answer 40

chronic lateness or persistent prologned absensec from work- but courts recommend warnings and progressive discipline employees who take time off for medical or personal reasons does not consitute just cause

Question 41

categories of conduct to justify dismissal: sexual harassment

Answer 41

fundamental breach of employment contract if misconduct is inexcusable, may make a wraning inapproiritae; employer needs to undertake fullsome contextual analysis but there is important to analyze culture of work environemnt

Question 42

categories of conduct to justify dismissal: drugs alcohol and intoxication

Answer 42

working under the influence can constitue summary dismissal if the employee is suffering from alcohoolism or drug addiciton, employer cant terminate contract unless frustrated if employee has had a long history of succesful employment, but is recently affected by diseases of alcool or durg, AND has not been able to go through a rehab rogram, dismissal not jsutifed AS LONG AS EMPLOYEE IS ABLE TO COMPLETE WORK IF EMPLOYEE IS DISCRIMIANTED DUE TO THEIR ADDICTION: HUMAN RIGHTS COMPLAINT

Question 43

EMPLOYEES cannot dismissed for asseting protected rights

Answer 43

section 10,1,a of AB human rights act: no person shall ertaioate because they use right more AB legislation with similar provisions: - employment standards code ohsa wca labour relations code

Question 44

breach of contract= wringful dismissal

Question 45

3 types of damages

Answer 45

reasonable notice damages aggravated damages punitive damages

Question 46

reasonable notice damages

Question 47

limitation period= 2 year discoverability period

Answer 47

employees have 2 years from disimissal date to sure for wrongful dismissal section 3.1.a from limitation act

Question 48

WRONGFULL DISMISSAL : "dismissal without cause where there has not been reasonably notice or pay in lieu of notice"

Answer 48

-employee has a right to be provided reasonable notice of dismissal- THIS IS AN IMPLIED TERM OF EVERY CONTRACT of EMPLOYMENT (unless expressly stated otherwise)

Question 49

2 common scenarios of wrongful dismissal

Answer 49

1. indsufficient notice or pay in lieu: not enough notice or pay in lieu provided- FAILURE TO MEET CONTRACTUAL OBLIGATION SO THERE IS AN ACTION FOR DAMAGES! 2. unjustified dismissal for cause: employer fails to justify the cause of dissmissal adequately, the employee is now entitled to damages

Question 50

UNLESS AN EMPLOYER EXPRESSLY CONTRACTS OUT OF COMMON LAW!!! THE MIN STANADRARDS +COMMON LAW APPLY

Answer 50

tHIS IS PURSUANT TO SECTION 3 EMPLOYER NEEDS TO EXPLICITY SAY: 1. you are only entiteld to minimums under employment standards porvisions 2. you dont get anything more UNDER COMMON LAW!!1 this is a good holistic expmple: Additionally, your employment may be terminated at any time without cause upon the provision by FTIC of the minimum notice of termination, or pay in lieu of notice, benefits and, if applicable, severance pay prescribed by applicable employment standards legislation in the province in which you are employed. The provision of such notice or pay in lieu of notice, benefits and severance pay constitutes full and final satisfaction of all rights or entitlements which you may have arising from or related to the termination of your employment (including notice, pay in lieu of notice, severance pay, etc.), whether pursuant to contract, common law, statute or otherwise.

Question 51

the more senior you are the more managers you are the more ksilled you are

Answer 51

THE MORE DAMAGES!! supervoisro should draft contract carefully these are common law realm

Question 52

what are aggravated damages

Answer 52

thes damages arise when employer mishandles the termination process to cause additional harm that is not ordinary! if employer tries to humiliate you or yellsa tyou in fron tof other people it leads to other damages! MEANT OT COMPENSATE FOR HARM

Question 53

aggravated damages needs to be proven! by employee

Answer 53

need to provide expert diagnosis like from aprofessional like if allegations are made

Question 54

what are punitive damages?

Answer 54

INTENT is present!!! Meant to PUNISh employer so they dont repeat bad conduct

Question 55

duty to mitigate

Answer 55

this is the duty that the innocent party must do something to mitigate the amount of damges they incur employee needs to take reasonable steps to find anothe rjob after being fired employee must maek reasonable effort to find a omcparable job

Question 56

duty to mitiagte ONUS

Answer 56

· The onus is on the employer alleging that the employee did not adequately mitigate to prove, not only a lack of sufficient effort by the employee, but also the availability of similar employment. BUT IF THEY DONT ASK TYOU DONT HAVE TO PROVIDE

Question 57

CONSTRUCTIVE DISMISSAL

Answer 57

Like wrognful dismissal, but the employer doesnt explicitly fire you BUT MAKES YOU SUFFER SO YOU TAKE LEAVE radically ALTERED your job

Question 58

Constructive dismissal is whene mployer breaks or repudiates fundamental term of contract

Answer 58

employees options: - accept the new terms OR - treat the contract as broken and sue for damages

Question 59

a wrongful dismiaal and constructive dismissal

Answer 59

BOTH ARE BREACH OF CONTRACTS

Question 60

2 PART TST FOR CONSTRUCTIVE DISMISSAL

Answer 60

1. EMPLOYEE MUST IDENTIFY AN EXRESS OR IMPLIED TERM OF COTNRACT THAT WAS BREACHED 2. DETERMINE WHETHER THE BREACH IS SERIOSU ENOUGH TO CONSTISTUE CONSTRUCIVE DISMISSAL

Question 61

a minor breach is not constructive disissal

Question 62

what consstutues constructive dismissal

Answer 62

change in job duties change in salary or benefits (10% is not a serious enough change in o&g, but 30% is) change in location of employment

Question 63

if there is no contract...

Answer 63

then you are entitled to the COMMON law!!!! not just the stat minimum