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Employment - Just Cause. Render v. ThyssenKrupp Elevator (Canada) Limited
In Render v. ThyssenKrupp Elevator (Canada) Limited (Ont CA, 2022) the Court of Appeal considered the 'proportionality' as it bears on firing as a sanction for employment misconduct:[60] As the trial judge stated, the Supreme Court has held that the governing rule in termination for cause cases is proportionality: McKinley, at para. 53. Because the employment relationship is such a fundamental one in Canadian society, an employee’s job can only be terminated for cause if that is a proportionate response to the misconduct. An employer in a non-unionized workplace may always terminate the employment of any employee on reasonable notice. Termination for cause is without notice and without paying salary in lieu of notice. It is reserved for circumstances where the employment relationship cannot be sustained: McKinley, at para. 48.
[61] This court recently reaffirmed in Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, 74 C.C.E.L. (4th) 196, the three-step test set out in Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 2004 CanLII 43692 (ON CA), 246 D.L.R. (4th) 65 (Ont. C.A.), at paras. 49-50, for applying the McKinley standard:Following McKinley, it can be seen that the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanction imposed for misconduct is to be proportional – dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship. This is a factual inquiry to be determined by a contextual examination of the nature of the misconduct.
Application of the standard consists of:
1. determining the nature and extent of the misconduct;
2. considering the surrounding circumstances; and
3. deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response). [62] Although the trial judge did not refer to Dowling, he applied the three-part test in his analysis of the evidence and in his conclusion.
....
[65] The core question on a case of just cause dismissal is “whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship”: Dowling, at para. 49. In order to meet its onus on this question, the respondent does not have to prove that it went through the process of applying the three-part test prior to terminating the employee, although that would certainly be the best practice in order to satisfy its onus in court. The Manitoba Court of Appeal reached a similar conclusion regarding whether an employer has a procedural duty to investigate allegations of theft before terminating an employee’s employment on that basis in McCallum v. Saputo, 2021 MBCA 62. As Pfuetzner J.A. said in that case at para. 22, where courts have commented on this duty, “it is in a practical, cautionary sense rather than as a free-standing legal duty.” If the court ultimately finds that there were reasonable alternatives to termination, summary dismissal will not have been justified, and the employer will be liable for wrongful termination. However, the fact that the employer did not specifically turn its mind to this question is not a free-standing error that turns an otherwise proportionate summary dismissal into a disproportionate one.
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