AFM231 Chapter Notes - Chapter 21: The Employer, Fundamental Breach, Absenteeism
18 May 2018
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AFM 231 – Chapter 21 – Terminating the Employment Relationship (pg. 539 – 543, 546 – 558)
Ending the Relationship
• Employment relationships end when
o Employee
▪ resigns to pursue other interest
▪ retires
▪ leaves at the end of fixed contract
o Employer
▪ summarily dismisses/fires an employee
▪ gives the employee notice of termination
▪ acts in such a manner that the employment relationship becomes untenable
• it is an implied term of an employment contract than an employer may terminate the
employment relationship without any notice if there is just cause
o term subject to collective agreements, individual employment contracts (might specify
the terms of ending the relationship), and legislation that may give some employees (i.e.
teachers, police officers) special rights on dismissal
• it is an implied term that an employer may terminate the employment contract by giving the
employee reasonable notice of termination
o here the employer is not required to have a reason or cause for the termination
o term subject to collective agreements, individual employment contracts, and provincial
and federal employment standards legislation provides notice periods and rights on
dismissal
Dismissal for Just Cause
• just cause: employee conduct that amounts to a fundamental breach of the employment
contract
• just exists when employee is guilty of 1 of the following
o serious misconduct
o habitual neglect of duty
o incompetence
o odut iopatile ith duties o pejudiial to the eploe’s usiess
o wilful disobedience in a matter of substance
Serious misconduct
• minor infraction by employee is not sufficient, although the cumulative effect of many minor
instances can be sufficient for justify dismissal
• serious misconduct: intentional harmful conduct of the employee that permits the employer to
dismiss without notice
• Progressive discipline policy: a system that follows a sequence of employee discipline from less
to more severe punishment
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o Each step carries a more serious penalty until the last step is dismissal
o Warning should be about the conduct be unacceptable and about the consequences of
failing to improve
o Warning can be oral/in writing that must be clearly understood by the employee
• Single act of misconduct can justify dismissal if it is sufficiently serious
• An act of dishonestly is not necessary sufficient to warrant just cause for dismissal and so the
nature and the context of the dishonest must be considered
• Examples of serious misconduct
o Stealing large amount of money from employer
o Lying to an employer
o Forging signatures
• What constitutes as a serious misconduct can be affected by the workforce polices in place
• Condonation: employer behaviour that indicates to the employee that misconduct is being
overlooked
o i.e. employer aware of harassing activities of employee but ignores it will have hard time
arguing just cause termination
Habitual neglect of duty
• it is the persistent failure to perform employment duties through constant absenteeism and
lateness
• the aseteeis ust e ithout the eploe’s peissio o authoizatio ad oe tha
occasional absence
• important to consider in absenteeism
o were warnings issued
o any excuse for the absence
o did the absence occur at a critical time for employer
• harder to establish lateness for grounds of dismissal
• important to consider in lateness
o employee had a valid excuses?
o were warnings issued
o whether the time was ever made up
Incompetence
• it is the lack of ability, knowledge or qualification to perform employment obligations
• employer must
o have given warning signs and opportunities to improve
o establish fair and reasonable performance standards against which to measure
performance
• employee a raise issues to explain poor performance
o poor training
o insufficient volume of business
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o inexperience
o condonation of performance problems
• a single act of incompetence is rarely grounds for dismissal, unless it shows a complete lack of
skills that an employee claimed to possess
Conduct incompatible
• it is the personal behaviour that is irreconcilable with employment duties or prejudicial to the
eploe’s usiess
• i.e. aeptig iappoaiate gifts fo eploe’s liets
• can apply to conduct outside business hours
• conduct incompatible is closely related to dismissal ased o eploee’s oflit of iteest
o i.e. eploee u a usiess that as i diet opetitio ith the eploe’s
usiess it ould e eah of eploee’s dut of loalt ad good faith
Wilful disobedience
• it is the deliberate failure to carry out lawful reasonable orders
• a single act of disobdendience would not normally consitte for grounds of dismissal unless that
act was very serious (i.e. refusing to follow important safety rules)
• employer needs to establish that the intstructions or directions given to employee was not
ambuous and the employee had no reasonable excuse for disobeying
• less serious instnaces of disobedience may justify dismisaal when combines with other types of
misconduct (i.e. insubordination)
• employer is entitled to expect an employee to carry out orders without extended debate and
with respect
• can an employer justify the termination on an employee who fails to meet standards depends
on
o if employee was provoked/upset
o if it was a moment of temporary anger
Risks in Just Cause Dismissals
• an employee is not entitled to any compensations when dismissed for cause, so they are more
likely to bring a suit against the employer
• Employer must carefully consider all of the potential costs of dismissing for cause and consider a
termination settlement
• An employer that dismissed an employee on just cause can reduce risk by ensuring there are
good policies and procedures for dismissal with just cause are in place and practiced
Dismissal with Notice
• An employee hired with for an indefinite period of time can be dismissed without cause as long
as the employer gives notice of termination (pay in lieu of notice)
find more resources at oneclass.com
find more resources at oneclass.com
