Can an Employee be Dismissed for a Single incident of Insolence or Insubordination Towards Management

| August 10th, 2017 | No Comments »

Being rude, disrespectful, or insubordinate towards a superior within the workplace is subject to disciplinary measures. Under common law, discipline must be proportionate to the misconduct and also be intended to correct a behaviour rather than punish the employee. In addition, the discipline must be progressive. This means that discipline is usually multi-staged, which each stage being more sever aimed at correcting similar reoccurring misconduct. For this reason, termination of an employee for a single act of misconduct is a rarely justified.

The principles of progressive discipline do apply for acts of insolence and/or insubordination towards a managerial figure of supervisor. A single act will usually require a verbal or written warning that clearly communicates the misbehaviour and what is expected going forward. Further steps for reoccurring incidents may include suspension or termination. However, there are also scenarios where a single act of insolence and/or insubordination towards a superior may warrant termination, and these standards are established through common law by the courts.

In the case of Henry v. Fox Ltd. the court defined the difference between insolence and insubordination for the purposes of workplace discipline. Generally speaking, insubordination is intentional disobedience of lawful instructions given by a superior and is of more serious misconduct than insolence. Insolence, on the other hand, is contemptuous or abusive language directed towards a superior, and less serious of the two. However, each act may warrant an immediate dismissal if one of the three results from the act itself:

  1. the act results in the employee and superior no longer being able to maintain a working relationship
  2. the act undermines the superior’s credibility and, as a result, the superiors ability to supervise effectively in the workplace
  3. the incident resulted in the employer suffering a material loss, loss in reputation, or the employer’s business interests severely prejudiced

For a single act of insolence or insubordination to warrant a summary dismissal, it usually must take place in front of other employees. The culture of the workplace will be considered. If it is a workplace that tolerates profanity and aggressive behaviour, a single act is less likely to justify a dismissal. Further, if the employer does not impose a ‘cooling off’ period so that the relation may be restored, the courts may see the employer’s decision to terminate in a less favourable light. In all, all relevant factors will be considered when determining whether a dismissal was justified, including the employee’s length of service and disciplinary record. Employers should take a comprehensive approach when deciding to impose immediate dismissal in such instances and legal assistance is always recommended where uncertainty lies.

Constructive Dismissal – An Intolerable Environment or Culture

| July 6th, 2017 | No Comments »

When an employer unilaterally changes a fundamental term of an employee’s job, then an employee may quit and claim ‘constructive dismissal’. Essentially, what this means is that the changes to the employment relation would have left any reasonable individual with no other option rather than to quit. The employee may then claim constructive dismissal, and if successful, would be owed a severance (referred to as ‘notice pay’) as compensation.

Unilateral changes that usually trigger constructive dismissal include significant reduction of pay, demotion, discrimination, reduction of hours and so on. The cause of a constructive dismissal is usually easily identified as a single factor of significant affect. However, the courts do not necessarily look at a single factor. Constructive dismissal may result from several changes or circumstances that create an intolerable environment for an employee. The cumulative effect, therefore, would trigger a constructive dismissal.

This was demonstrated in Shah v. Xerox Canada Ltd 2000 (OCA). Shah was an employee of Xerox for 12 and a half years with a good performance record, bonuses and raises. Shah accepted an internal transfer and reported to a manager with a personality and philosophy that was not compatible with Shah’s. Shah’s new manager was aggressive in style, very outgoing and confident, assertive and combative; Shah was reserved, withdrawn, and gentle. This created uncertain expectations for Shah, as his new team encouraged an ‘empowerment’ culture, free thinking and independence, whereas Shah liked direction and structure. Shah’s new manager raised multiple performance concerns. The first critical performance review used poor factual evidence, and the second one provided poor detail and questionable claims. Shah then received 3 unexpected and unwarranted warning letters over a 2-month span, the last placing Shah on probation without defining any expectations or allowing an opportunity to respond. This also added to the mental distress Shah was experiencing in addition to stress from his personal life. Shah requested a transfer and once his manager denied him, Shah quit and successfully claimed constructive dismissal.

The court considered the cumulative effect of Shah’s change of environment. This included the change in culture, the manager’s style and treatment towards Shah, including the lack of detail contained in the warning letters, unclear expectations and unfounded claims. Whereas Xerox argued that constructive dismissal must result from a unilaterally imposed fundamental change to the employment contract, the court maintained that the focus must be on whether the employer intends to be bound by the employment contract. The cumulative effect of the multiple warnings that lacked details for corrective action signified Xerox did not intend to continue the employment relation with Shah. This, in addition to the cultural change affecting Shah, resulted in a constructive dismissal.

Overall, constructive dismissal may result from conditions not typical of most constructive dismissal causes. It is important to speak with an employment law expert if faced with an intolerable situation in the workplace that makes continued employment unreasonable.

Employee Duty to Mitigate Damages After Being Terminated

| January 18th, 2017 | No Comments »

Being terminated from employment can be an emotional and impassioned time but it is important that employees remain mindful of their duty to mitigate damages. This simply means that an employee must make the necessary efforts to lessen their losses and, in turn, the amount of damages the employer is obligated to pay. In court, employees are required to initially show that they have taken reasonable steps to mitigate damages.

The duty to mitigate requires the employee to accept a comparable position if offered by the employer providing the working environment has not turned hostile. As established by past court cases, this offer may be made immediately or after some time has passed. The offer, however, must be a position that is comparable and not one that leads to embarrassment or loss of status. In determining whether a position is comparable, factors usually include wage/salary, location, status, and training. Employees must also seek and accept comparable offers of employment from other employers. If it is proven that a comparable position was offered by another employer and it was turned down, employees may not be entitled to damages from their previous employer.

If an employer challenges the employee’s efforts in mitigating damages, they must go beyond just proving that there was an availability of comparable jobs during that time. The employer must also show that the employee had a reasonable chance at obtaining such positions and that the employee failed to pursue the employment opportunities.

There are many other factors that can influence the amount owed in damages depending on the complexity of the situation. Such factors may include retraining and career changes, the decision for the employee to pursue their own business and so forth. It is thus important to speak to a legal expert to clear up any uncertainties and to ensure the amount paid in damages is fair.

Your Legal Rights After Maternity Leave is Over

| May 4th, 2016 | No Comments »

rights after maternity leaveEmployers are usually obligated to reinstate an employee following a maternity leave.  The employee has the legal right to be returned to the position she held prior to the maternity leave, and if that position no longer exists after the leave, to a “comparable” position.

The “comparable” position must be comparable in all respects – location, hours of work, quality of work, degree of responsibility, job security, prestige, and so forth.

If the employer can prove that the person on maternity leave would have been terminated regardless of the leave, the employer might be able to avoid the consequences of breaching this obligation.  However, the company has the onus of proving its case.

If a company does breach its obligation after maternity leave, the employee can claim lost wages, associated expenses, emotional pain and suffering, and even damages for the “loss of reasonable expectation of continued employment” – this could amount to an extra month’s pay per year of service.

Moreover, if the failure to return to work is found to be a punishment or “reprisal” for taking the maternity leave, then there could be additional damages against the company.

This topic is without a doubt, one of the most misunderstood and contentious issues in employment law. To learn more about your options, contact an employment lawyer who can explain and advise on which steps should be taken to your benefit.

 

Author: Daniel Chodos, Whitten & Lublin

Should you accept a demotion due to your illness?

| October 2nd, 2015 | No Comments »

Question:

I was injured at work and subsequently diagnosed with an autoimmune disease, which my doctor says is likely related to the injury but not really provable.   My performance at work has suffered due to this disease, also because of absences due to hospital visits and the like.  I had never been written up before until my injury and now it seems like they are trying to get rid of me. They are essentially forcing me to step down from my management position or I feel like I will be fired.  As it stands now, I have actually agreed to step down, so it may be too late for me to do anything about it, but I feel that I was railroaded into this decision. 

Answer:

You are not required to accept a unilateral demotion, especially if the reason your performance has suffered is related to an illness.  Your employer is required to accommodate your autoimmune disease, and related absences, to the point of undue hardship.  Tell the employer you’ve changed your mind – you are no longer prepared to move into the new job; you want to be accommodated in your existing management position. If they refuse, call a lawyer or the human rights legal support centre.

Based on your individual needs, the experts can guide you step-by-step and provide thorough legal advice.