LAW 529 Lecture Notes - Lecture 5: Wrongful Dismissal, The Employer, Condonation
27 Sep 2016
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Where dismissal is with just cause: no advance notice or package is required (summary dismissal/employee summarily dismissed) All or nothing: if you did something was not serious enough then you have no just cause but if you did something really bad then they do. Misconduct or incompetence so extreme that amounts to repudiation of the employement contract: employer is no longer bound by common law obligation of reasonable notice. Decided on particular facts -> bad employee, or commits a crime, doesn"t come to work etc. Onus of proof on the employer: to show on balance of probabilities that employee breached contract in fundamental ways. Objective tests: proportionality: any sanction must be proportional to the conduct to which it relates. Most misconduct or performance related incidents must occur more than once. Unless express/implied terms in employment contract allowing form of discipline, a suspension without pay may constitute cd under common law: contextual: nature and seriousness of alleged offense.
