Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com with Stuart Rudner Ask an Expert RUDNER MaCDONALD TORONTO Canadian HR Reporter, a Thomson Reuters business 2015 2 | July 22, 2015 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com When suspicions are justified Question: Is there just cause for dismissal if an employer has definite evidence of one instance of misconduct that may not on its own be enough but also has circumstantial evidence of a large number of instances of other misconduct? Announcing a change to the job that doesn't happen Question: If an employer tells an employee about a significant change to the job that the employee protests but the employer doesn't follow through, can that be considered constructive dismissal? Answer: Generally speaking, constructive dismissal arises where an employer makes a unilateral change to an employee's condi- tions of employment that substantially alters the conditions of employment, or multiple changes that together amount to a substantial alteration of the conditions of employment. When an employee is informed that her employer is making a significant change to her employment, she has two options: she can either agree to the new conditions, or she can refuse to agree to them. If the em- ployee refuses to agree, and the employer imposes the conditions anyway, the em- ployee can then proceed as if she has been constructively dismissed and bring a claim for wrongful dismissal. In the case of an employer that does not follow through with the change after an em- ployee has protested, there likely has not been a constructive dismissal. However, as with most employment law questions, the answer truly depends on the specific facts of the case. e specific nature of the change, the manner in which the change is com- municated to the employee, and the timing of the employee's claim of constructive dis- missal will all form part of the analysis. In order to avoid uncertainty, employers who have decided not to go ahead with pro- posed changes to an employee's conditions of employment should confirm this decision in writing rather than just failing to follow through. e employee may view the employer's si- lence in response to her protest as an indica- tion that it is imposing the changes despite her protest, or she might be unsure whether or not the changes are going to be imple- mented. e employer's failure to commu- nicate its decision to the employee could therefore be seen as causing the employee undue stress and anxiety, and could poten- tially provide the employee with the basis to argue for an award of aggravated and puni- tive damages. Stuart Rudner is a founding partner of Rud- ner MacDonald LLP, a Toronto-based em- ployment law firm. He is author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a omson Reuters business (see www.carswell.com for more in- formation or to order your copy). He can be reached at srudner@rudnermacdonald.com. Stuart gratefully acknowledges the assistance of Cody Yorke with the preparation of this ar- ticle. Answer: An employer has the right to dis- miss an employee without notice or pay in lieu of notice if it has just cause for dismiss- al. e question of whether an employee's misconduct warrants summary dismissal is a question of fact that must be determined based on the specifics of the situation. In deciding whether an employer had just cause for dismissal, courts will consider not only the alleged misconduct, but also all relevant factors, which can include the employee's length of service, disciplinary record, role within the organization, re- sponse when confronted, and anything else that is relevant. In all cases, employers are required to consider the entire circumstances of the employee's history with the employer, and not just the particular incident. Employers must consider an employee's length of ser- vice and whether she has a history of previ- ous misconduct. However, if the employer was aware of previous misconduct, but did not investigate or address it, that miscon- duct cannot be considered a record of pre- vious misconduct, and can even be seen as condonation on the part of the employer. By not warning or disciplining the employee for misconduct, the employer inadvertently sends the message that the behaviour is ac- ceptable. e employer cannot then turn around and dismiss the employee for the same behaviour. Additionally, employers must be careful not to discipline employees (including dis- missal) for alleged misconduct when there is insufficient proof of actual wrongdoing. Employers have a duty to investigate alleged misconduct fairly and objectively, and cir- cumstantial evidence may not be sufficient to provide an employer with just cause to dismiss an employee. Proof of misconduct does not have to be "beyond a reasonable doubt," as in a criminal prosecution, but the employer cannot impose discipline without fairly investigating. In the context of this question, it sounds as though the "large number of instances of other misconduct" were not investigated or raised with the employee. As such, it would be ill-advised to rely upon them in order to justify summary dismissal. Imposing some discipline for the current incident would be wise, along with a warning that further mis- conduct will lead to further discipline, up to and including dismissal for cause. On the other hand, employers may still want to dismiss the employee for practical reasons, as it may be concerned about the effects of keeping the employee on its repu- tation or the morale of its other employees, depending on the situation. An employer is entitled to dismiss a non-unionized em- ployee without just cause at any time, so long as it provides the employee with reasonable notice or pay in lieu thereof. If the employer was aware of previous misconduct but didn't address it, it can be seen as a condonation WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as key developments in employment law, employment standards, mitigation, and biometrics. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

• Cover