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Just Cause

Does an employer have to produce a third-party investigator's report in the course of litigation?

Jurisdiction: - British Columbia

Does an employer have to produce a third-party investigator's report in the course of litigation?

The BC Supreme Court addressed this issue recently in Bank of Montreal v. Tortora, 2009 BCSC 1224, where the defendant former employees brought an application seeking that the Bank of Montreal (the "Bank"):

  1. produce the documents in a third-party investigator's files; and
  2. provide a list of documents over which it claimed privilege that satisfied the requirements of Rule 26(2.1) (i.e., list the documents individually and describe them so that the validity of the privilege claim could be tested).

Background

The Bank dismissed two long-term employees on December 3, 2008 and filed a lawsuit against them on January 6, 2009, claiming that:  read more »

Saskatchewan Court of Appeal overturns trial judge, allows dismissal for just cause based on incompetence

Jurisdiction: - Saskatchewan
Sector: - Media

In Radio CJVR Ltd. v. Schutte, 2009 SKCA 92, the Saskatchewan Court of Appeal, in  overturning the trial judge's decision, ruled that the employer had just cause to dismiss an employee who was the program director, music director and on-air morning show co-host for a newly formatted AM station.

In doing so, the court recited the test that will be applied when assessing whether an employer had just cause to dismiss an employee based on incompetence:

  1. the employer must provide reasonable objective standards of performance for the employee in a clear and understandable manner; 
  2. the employee must have failed to meet the employer's reasonable standard of performance;
  3. the employer must give the employee a clear and unequivocal warning that she or he has failed to meet the requisite standard, including particulars of the specific deficiency relied on by the employer; and
  4. the warning must clearly indicate that the employee will be dismissed if he or she fails to meet the requisite standard within a reasonable time.

Senior employee's refusal to submit budget with head office's desired profit projections not cause for dismissal

Jurisdiction: - British Columbia

In Adams v. Fairmont Hotels & Resorts Inc., 2009 BCSC 681, the BC Supreme Court found that the employer did not have cause to dismiss a senior employee because of her refusal to prepare an annual budget that that included the employer's desired profit projections.

In doing so, the court reviewed the law on insubordination, and when it can amount to cause for dismissal in light of the "contextual approach" that was mandated by the Supreme Court of Canada in McKinley v. BC Tel, 2001 SCC 38.

Background

The plaintiff was the General Manager of a hotel that was part of a luxury chain. At the time her employment was terminated she was 41, had 12 years of service and was earning approximately $150,000 per year (exclusive of bonuses and benefits).

The hotel chain's corporate office (the "employer") alleged that it had cause to dismiss the plaintiff for insubordination because:  read more »

Contextual factors to consider when assessing whether employer has just cause to dismiss an employee

Jurisdiction: - Ontario

A new test for dismissing an employee for just cause was established by the Supreme Court of Canada in McKinley v B.C Tel, 2001 SCC 38. In that case the Court stated that, among other things, employers must undertake a contextual analysis of ths misconduct.

In a recent case - Corso v. Nebs Business Products Limited, [2009] O.J. No. 1092
(Ont.S.C.J.)  - the Ontario Superior Court set out a useful checklist of the contextual factors that should be considered.

The case concerned the dismissal of an employee who, in the face of a detailed Conflict of Interest policy, covertly developed a computer program product that would be detrimental to the employer's core business.

The checklist is as follows:  read more »

Sexual harassment at Christmas party and dishonesty during investigation lead to senior employee's dismissal

Jurisdiction: - British Columbia

The plaintiff's employment with Marriot Hotels of Canada Ltd. was terminated for cause on February 1, 2007. He was 46 years old, had been employed by the hotel for 22 years and held the position of Director of Sales and Marketing.

Prior to the incidents in question, the plaintiff's employment record was free of any discipline.

The defendant hotel alleged cause for dismissal based on the fact that the plaintiff:

  • Was a senior manager with responsibilities for supervising the company holiday party, permitted the excessive consumption of alcohol, engaged in sexually suggestive dancing, and condoned an "after-party" where Marriott employees drank heavily;
  • Engaged in inappropriate sexual touching with a female subordinate in the bathroom at the after-party; and
  • Was dishonest when he denied the sexual touching allegation during the defendant's investigation of his misconduct.

Distribution of drink tickets, alcohol consumption and suggestive dancing

In relation to these allegations, the court found that:  read more »

Discharge upheld where employee with gambling addiction stole $1,600 from co-worker

Jurisdiction: - Nova Scotia

Communications, Energy and Paperworkers Union, Local 40N and Farmer's Cooperative Dairy Ltd. January 11, 2009 (Christie) (Nova Scotia)

"Executive Employment Terminations"

Jurisdiction: - Alberta

Lawyers Brian Thiessen and Scott Sweatman, at the Calgary office of Blake, Cassels & Graydon LLP, have written a paper on "Executive Employment Terminations" (May 28, 2008). The paper focuses on issues pertaining to: (1) Stock Options; (2) Bonuses; and (3) Pension Entitlements.