August 21, 2013

On Monday, An employee of Mr. Lube tweeted:

“Any dealers in Vaughan wanna make a 20sac chop? Come to Keele/Langstaff Mr. Lube, need a spliff or two to help me last this open to close.”

The York Regional Police found the post and replied: “Awesome! Can we come too?”  They then brought the tweet to the attention of his employer, Mr. Lube.  Shortly thereafter, the employee was terminated from his employment.  We do not know whether the employee was terminated with or without cause – that is the question.

While in this case, it may have been an easy decision, the issue of whether or not an employer has just cause to terminate an employee’s employment is never one to be taken lightly, as doing the wrong thing may land the employer significant liability in extraordinary damages.

In determining whether an employer has just cause to terminate the employment of an employee, the employer must consider the context of the situation and the proportionality of the response.  In the world of work, terminating an employee for just cause is like charging the employee with murder in criminal law, it is the most serious charge that can be made against an employee.  Therefore the Supreme Court of Canada warns that the punishment must fit the crime.

When attempting to determine this, and assessing the context of the situation, the employer is responsible for reviewing the employment history.  This involves many factors, including the employee’s length of service.  For example, an employee who has more seniority than another employee will likely be given more leeway, than an individual who has only been with the company for a short time.  In that regard, if the “just cause” is a one-time event, for a person of 20 years with the company, it is unlikely to be considered just cause.  Although, under certain circumstances, an employer may have cause for dismissal.  However, if it is someone who has been with the company for less time, then the employer is more likely to have just cause for dismissal, as the employee has not been able to establish a “track record”, like the more senior employee.  Although, again, under certain circumstances, an employer may not have cause for dismissal.

It is equally important to review the offence itself.  Offences of a criminal nature, which harm the company’s reputation will more likely be found to be terminations for just cause.  Whereas, offences of a lesser nature may not be.

In any event, if an employer gets it wrong, and terminates for just cause where there is none, and exacerbates the situation by terminating the employee in bad faith, there may be extraordinary damages attributed to the situation.  For example, moral damages arise where the employee has been terminated in bad faith, and where it is reasonably foreseeable that the employee would be caused mental distress by the termination.  When discussing manner of termination, the termination process itself can include both pre- and post- termination conduct.  Further, if a court finds that the employer’s conduct was reprehensible, vindictive and behaviour that ought to be punished, a court could award punitive damages to punish the employer.  In that regard, recent damage awards have reached six figures in an effort to provide a deterrent to an employer acting in this manner.  The message from the courts is that termination of one’s employment is difficult enough, it is not necessary to exacerbate the damages already inflicted by the termination itself.  If an employer does, there may be consequences.

In the case of the Mr. Lube employee, we do not know what happened, but it is important to understand the process in determining whether the employer should terminate with or without cause.

By Natalie C. MacDonald