Currie Law – Employment Law, Criminal Law, Civil Litigation in Mississauga, Oakville, Milton, Campbellville, Georgetown, Hamilton, Burlington and the Niagara Region

Ms. Currie graduated on the President’s roll of Scholars with her B.A. She obtained her LL.B. in 1986 and has been representing litigants in groundbreaking cases since her call to the bar. As a partner in a large litigation firm downtown Toronto for 18 years, Ms. Currie moved her practice closer to her home west of Toronto where she now serves the South Western Ontario Region.

Ms. Currie is known for her advocacy, strength and experience in the Courtroom and the advice she renders to clients to avoid costly courtroom battles. Many of the cases referred to her are by other lawyers who recognize their need to obtain an experienced litigation counsel.
She has been an instructor at York University, Osgood Law School where she served as an instructor for both lawyers and law students to learn trial advocacy and courtroom skills. She is also engaged as an instructor at the Canadian Intensive Trial Advocacy Course which is a yearly course for trial lawyers that want to improve their litigation skills.

Fired For cause
Every employer has a right to end an employment relationship immediately for “just cause”. That means that if an employer has caught an employee in an egregious act with no justification it is within its rights to dismiss that employee immediately. Some examples of “just cause” include:

Theft
Excessive tardiness or absenteeism
Dishonesty
Insubordination
Incompetence
Conflict of Interest
Substance abuse
Violence or harassment in the workplace
Immoral or criminal conduct – even if it is in the employee’s private life.

The Courts impose a high hurdle, however, and require stringent evidence to prove “cause”. In a recent case the Court found that an employee’s actions in accessing pornography using the company computer; failing to attend diligently and work as part of a “team”; habitual lateness; use of his company computer to work on personal file; and failure to follow directions, even considered cumulatively, when balanced against the employee’s 11 years of otherwise commendable service, did not constitute just cause for termination without notice. [Plotogea v Heartland Appliances Inc.]

Employers have a duty to provide an employee with an opportunity and the means required to improve their performance, if they intend to dismiss them “for cause”. To show that an employee is incompetent and worthy of such dismissal, the Courts often require that progressive warnings clearly identifying the areas of concern and giving the employee an opportunity to correct these areas, are issued.

Employers

Those wishing to dismiss a continually unpunctual or under performing employee should create a paper trail documenting all allegations and concerns. If there is a performance appraisal, clearly outline the concerns and areas that require improvement.

When dismissing an employee for “just cause” be aware that the Court will apply a 2 part test in determining whether it was justified:

1. Was the conduct complained of as the basis for dismissal established on the balance of probabilities?

2. Was the nature and degree of such conduct such that it warrants dismissal? The seriousness of the conduct alleged must be carefully balanced with all of the circumstances in the case. [Did it violate an essential condition of the employment contract and constitute a breach of faith inherent to the work relationship? Was such conduct fundamentally or directly inconsistent with the employee's obligations to his employer?]

In essence you must consider if termination without notice is proportionate to the employee’s misconduct and negligence. Is there some other approach, short of termination without notice, more proportionate to his negligence available? (eg. suspension, demotion, or reduction in pay for a stated period)
Employees

If you feel a performance appraisal or “warning letter” is unfair or unjustified, it may be important to respond in writing outlining those areas that you feel your employer overlooked or misunderstood. If you know that there is a valid concern, ask for sufficient time and the necessary tools to correct the problem. But ensure that the tone of any response is professional. You may be wise to have an employment lawyer read it first.

My employer has told me he has to change my working conditions or reduce my salary. Is that a type of wrongful dismissal?

In most circumstances, a unilateral change in the working conditions or salary amounts to a form of wrongful dismissal known as constructive dismissal. Such conduct could be grounds for you to quit your job and sue for damages.

My employer has terminated my employment and offered me a severance package that is more than the amount required by the Employment Standards Act . Should I take that amount?

The amounts set out in the Employment Standards Act is a bare minimum. In most circumstances, you are entitled to more. There are many factors to consider in determining the appropriate amount in your wrongful dismissal situation. You must consult a lawyer knowledgeable in wrongful dismissal who can advise you whether the amount offered is fair and reasonable.

I get the feeling I’m about to be fired. What should I do if I think I’m about to be fired or laid off?

First, consult with a lawyer experienced in wrongful dismissal law. If you have been incorrectly accused of misconduct, it may be advisable to dispute this accusation before you are asked to leave. If you are laid off for reasons not relating to your performance, we can advise you of your rights and help you determine the best way to manage the situation.

I was required to enter into a written contract limiting the amount my employer has to pay me if I am let go for no reason. Is this enforceable?

It may not be, especially if it was entered into after you accepted the position or after you started to work. A lawyer knowledgeable about wrongful dismissal law can help determine this after fully reviewing all of the facts of the case.

My employer terminated my employment in a humiliating and embarrassing manner. Do I have any recourse?

Such a dismissal may be wrongful and entitle you to increased damages and even a claim for aggravated or punitive damages.

Can I be fired or laid off while I’m on sick or stress leave?

Terminating your employment in this situation may be a wrongful dismissal entitling you to damages.

If I am in a wrongful dismissal action, do I have to wait for it to resolve before looking for work?

You should look for work as soon as you are able. The Courts have held that if you are dismissed, you have an obligation to look for work and accept a job if it is comparable to your last employment. However, the pay from the new job may offset in some manner the amount you’re entitled to receive in a wrongful dismissal action.

What is just cause?

Just cause means a good reason to fire you. It usually means that you did not perform your job duties or you did something seriously wrong, like stealing from your employer or unreasonably refusing to follow your supervisor’s directions. Your employer may have just cause to fire you if you:

• use drugs or alcohol that interfere with your job performance
• ignore a strict workplace rule
• intentionally and unreasonably disobey your boss
• consistently refuse to follow a clearly defined chain of authority in a tightly knit business
• are disloyal to your employer or put yourself in a conflict of interest, for example, you set up a business to compete directly with your employer
• ignore a clear workplace policy, procedure or rule
• are dishonest about something important
• are incompetent; for example, if you got the job only because you could repair computers and it turns out you can’t

There may be other cases of just cause and things aren’t always as clear cut as these examples. An employer does not have just cause to fire you simply because he or she is dissatisfied with your job performance. An employer may have to warn you before firing you. An employer may even have to offer you reasonable job training.

Some employers may try to avoid giving you notice or severance pay by saying there is just cause to fire you, even if there isn’t. If you are fired and the employer says there is just cause, look very carefully at the employer’s reasons for firing you to see if there really is just cause. A personality conflict between you and your superior may not be just cause – it depends on the facts of the case.

What are the employee’s obligations after dismissal?

There is generally an obligation to mitigate the damages. In other words the employee must actively seek out another job and be prepared to demonstrate your reasonable efforts to obtain alternate employment. A terminated employee is entitled to search locally. He is not expected to uproot his family and move because a job may be available in that region. Further a terminated employee is entitled to search for employment in his or her own or in a related field. While some flexibility of expectation may be appropriate, the terminated employee in a skilled or highly qualified area is not required to accept a position at minimum wage preparing fast food merely to mitigate his damages.

An employee must keep a proper log and evidence with respect to his efforts including the date of any attendances at a company; his contact person at the company and any follow up done. An employee should further consider seeking out professional advice to assist with a job search.