As published in Exchange Magazine June 2010

The following statement was made by a judge in a  wrongful dismissal case action: “Just Cause is the Capital Punishment Crime of Employment Law.”

The statement captures the serious nature in which our courts view the allegation of just cause and the tremendous onus placed on employers to prove it.

In  2001 the Supreme Court of Canada established what has been called a “contextual approach” to be applied when an employee is dismissed for just cause.  The decision followed on the heels of another landmark ruling of the Supreme Court  in which the following  was quoted:

“Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society.  A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.”

It is from this perspective that our courts will assess an employee’s misconduct in the overall context of the employment relationship, followed by a considertion of whether the dismissal for cause was proportionate to the wrong committed.

In Williamson v. Ritz Lutheran Villa, a recent case out of Kitchener, Justice Flynn found that the employer did not have just cause to end the employment relationship, notwithstanding the employee’s refusal to follow a clear direction of her employer.

Williamson was a 46-year-old healthcare worker employed by Ritz Lutheran Village in its continuing care and retirement community in Mitchell, Ontario.  At the time of dismissal, she had been employed for 13 1/2  years.  The employer’s mission statement stated that it provided: “Compassionate quality care, housing and related services to enrich the lives of those we serve and those who serve them.”

Williamson’s employment was terminated for cause as a result of her decision to accompany one of the residents on a cruise.  The resident was 87 years old and had been a frequent traveler prior to living at the retirement community.  She wanted to go on one last trip.  She booked a 12-day Mediterranean cruise commencing October 10, 2008, and arranged for a care-providing companion to accompany her (she was not physically able to travel alone).  The plans fell through for the companion to accompany her.  So, in late summer 2008, the resident asked Williamson to accompany and assist her on the cruise.  Williamson submitted the appropriate paperwork to request approval for the two weeks off, and received approval on September 18, 2008.

On October 6, four days prior to the scheduled trip, Williamson was called to  a meeting with the Director of Care and the CEO and was advised for the first time that her plan to accompany the resident represented a violation of certain workplace policies (Outside Employment and Acceptance of Gifts and Gratuities).  She was told that she would be terminated if she went on the cruise.  Williamson advised management that she was concerned that the resident would be unable to find an individual to accompany her at such a late date.  She also explained that she was not being paid to accompany the resident.  Management responded that the trip itself would be a gift and against policy.  Shortly after the meeting, Williamson contacted management and offered to pay for the trip out of her own pocket and asked them to reconsider.

At a subsequent meeting on October 8, two days before the cruise, Williamson met with the same managers and reiterated that she was not being paid to accompany the resident, was taking her own vacation time, and was prepared to pay for the trip out of her own pocket.  She was then told that it would be a conflict of interest and a violation of the caregiver-client relationship for her to accompany the resident.  The employer maintained its position that Williamson would be terminated if she went on the trip.  Williamson went ahead and accompanied the resident.  The employer insisted that it had cause to terminate the employee on the basis of prospective disobedience, and queried: “what does an employer do with a defiant employee?” It equated Williamson’s action to insubordination or repudiation of the employment contract.

Justice Flynn held that, if there was a breach of policy, it was not sufficiently serious to justify dismissal, nor was it unreasonable for the employee to have done what she did.  He noted that in 13 1/2 years of employment Williamson had not received any disciplinary notices and had a perfect employment record.   He found that there was no defiance on Williamson’s part and that she at all times thought that she had covered her bases.  Ultimately, Justice Flynn found that Williamson had not refused to perform an essential condition of the employment contract, nor had she engaged in behaviour totally incompatible with her obligations to her employer.

As an employer when deciding whether cause exists consideration must be given to the nature and seriousness of the misconduct in order to assess whether it is reconcilable with sustaining the relationship.   All surrounding circumstances must be considered (seniority of the employee, his or her employment history and performance, age, position within the organization), and whether the remedy (dismissal for cause) is proportionate to the wrong, keeping in mind the importance of work to human dignity, well-being and financial security.  Where some lesser form of discipline would be appropriate, summary dismissal will not be permitted.