Skip to Content

Dismissal for just cause referred to as the "capital punishment" of employment law

Jurisdiction: - Ontario
Sector: - Manufacturing

In this passage in Plester v. Polyone Canada Inc., 2011 ONSC 6068, the court stated that just cause dismissals have been referred to as the "capital punishment" of Canadian employment law:

[32]           The law of employment in Canada requires employers to provide adequate notice before dismissing an employee. Where the employer wishes to dismiss n employee summarily, on the basis of misconduct, the onus is on the employer to show just cause.

[33]           The McKinley test requires a three step analysis. The court must first determine the nature and extent of the misconduct. Secondly the court must consider the surrounding circumstances for both employer and employee. Finally the court must determine whether dismissal is warranted as a proportional response: is the misconduct sufficiently serious that it gives rise to a breakdown in the employment relationship.  Leitner v Wyeth Canada, [2010] O.J. No. 351 (Ont. S.C.J.), Dowling v. Ontario (Workplace Safety and Insurance Board) 2004 CanLII 43692 (ON CA), (2004), 192 O.A.C. 126 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 25.

[34]           Dismissal for just cause has been referred to as the "capital punishment" of employment law. In determining whether misconduct on the part of an employee should lead to dismissal, the Supreme Court of Canada has set out an analytical framework involving a contextual approach, to be followed in deciding whether an employer had just cause to dismiss an employee. The trial court must consider not simply whether the employee was guilty of misconduct that gave rise to the dismissal, but also whether the nature and degree of the misconduct warranted summary dismissal.  McKinley v. BC Tel, 2001 SCC 38 (CanLII), [2001] 2 S.C.R. 161, Bennett v Cunningham, [2011] O.J. No. 185 (Ont. Div. Ct.) aff'd [2006] O.J. No. 4446 (Ont. S.C.J.) 

[35]           Inherent in the contextual approach is the principle of proportionality: alternatives to summary dismissal without notice must be considered by the employer before terminating an employee for just cause.