Myths and misconceptions

By Stuart Rudner

Can you fire someone who has a disability or a need for accommodation? Are last-chance agreements enforceable? The simple answer to both questions is “yes” but, as usual, the reality is often a little more complicated.

In my book, You're fired! Just Cause for Dismissal in Canada, I discuss summary dismissal and the complex legal concepts which must be applied to determine whether an employee can be “fired.” The reality is that there are many myths and misconceptions which often lead employers down the wrong path, either imposing summary dismissal when they shouldn’t (and exposing themselves to liability), or failing to impose dismissal when they can and should.

As I say repeatedly in my book, and in related articles, presentations and blog posts, there are few hard and fast rules, and every situation must be assessed based on its own set of circumstances. As my team and I review every just cause decision in Canada so we can prepare the bi-annual updates, it is helpful to review recent decisions every now and then, as they often provide a timely indicator or reminder of the current state of the law.

Accommodation and dismissal

There is a fairly common view that people with disabilities, or on medical, pregnancy or parental leave, are "untouchable." That is entirely untrue. An employee cannot be dismissed because of their disability (or leave of absence), but they can be disciplined or dismissed for other appropriate reasons that have nothing to do with their disability. The reality, however, is that the disability or need for accommodation often ends up being part of the assessment. As the law has made clear, if a protected ground is even a tiny portion of the reason for dismissal, then the employee’s human rights have been breached, and the employer is liable. It is all-or-nothing assessment.

Furthermore, every dismissal must be assessed to determine whether it was warranted, bearing in mind all relevant circumstances.

Failure to give clear warning

There will be situations where a single incident of misconduct will warrant summary dismissal.  However, in many cases, it will be necessary to provide clear warning that the conduct in question is unacceptable and will lead to dismissal. Many employers fail in this regard, preferring to provide watered-down warnings which do not adequately convey the seriousness of the situation. As a result, employees can often credibly claim that they did not understand that their job would be at risk if they engaged in the conduct in question.

In Saskatchewan Gaming Corporation Casino Moose Jaw, the grievor was terminated as a result of absenteeism issues. The employer had an Attendance Support Program which set out various expectations and procedures, including the fact dismissal would result when it could be shown that an employee’s absences were excessive, there was no likelihood of improvement, and any applicable duty to accommodate had been exhausted.

The grievor worked as a dealer and had to miss work frequently due to eldercare obligations, as well as migraine headaches. The employer had spoken with her about her attendance, but the arbitrator found that it had only provided mixed messages and not a clear warning that it would result in dismissal. Finding that providing notice is a “matter of fairness to the employee”, and that it had not been provided in this case, the arbitrator overturned the dismissal.

Last-chance agreements

Another issue that often arises in the context of summary dismissal is that of last-chance agreements, which are particularly common in the unionized environment. I am often asked whether courts and arbitrators will enforce the terms of such agreements or whether, like zero-tolerance policies, they will insist on assessing the reasonable of every dismissal on a case-by-case basis.

Although I often advise employers not to assume that they can rely upon zero-tolerance policies to dismiss an employee for any breach, the opposite is generally true for last chance agreements. Where an individual has entered into such an agreement, and then breached it, dismissal will usually be upheld.

A recent example is Cariboo Pulp and Paper Company, in which the grievor was dismissed for cause after he arrived at work two hours late. Unfortunately for him, there was a consent award in place as a result of previous disciplinary incidents. This last-chance agreement provided that his employment would be terminated for any offence occurring during a two year period. His late arrival was only about a month into the two year period. While the union tried to argue that lateness was not a disciplinary offence, the arbitrator rejected this argument and upheld the dismissal.

Another interesting recent case along these lines is Diageo Canada Inc., the grievor had an alcohol addiction which had been accommodated by the employer over a period of time. He had a lengthy disciplinary history and had undergone treatment on several occasions. At one point, as a result of attendance issues, the employer attempted to impose a last-chance agreement which included an abstinence clause that provided as follows: “Should you consume drugs or alcohol, your employment will be terminated.” The letter setting out the terms also included this warning:

“Mike, we wish to be absolutely clear with you. This is your final chance to retain your employment. Your continued employment with Diageo is very much in question. It is now up to you to demonstrate that you wish to retain your employment by complying with all aspects of these standards of acceptable conduct.”

The grievor and his union refused to sign this, and the employer purported to unilaterally impose it. When there was an incident in which the grievor consumer alcohol, he was summarily dismissed. The arbitrator rejected the grievance, finding that the actions of the employer were reasonable:

[93]        By way of summary, the grievor as an alcoholic is entitled to be accommodated. The evidence shows that the employer fulfilled its duty to accommodate which included the terms and conditions of employment imposed by the employer, including the abstinence condition. It was a proper exercise of the employer’s statutory duty to accommodate the grievor’s alcoholism and was imposed as part of a long-standing process of accommodation. The condition was not unreasonable because it was directly responsive to the grievor’s disability. In light of the long history of steps to accommodate the grievor, it is not clear what more the employer could reasonably have done.

[94]        The grievor was aware of the abstinence condition and understood the consequences of not abiding by it. He simply didn’t agree with it or think it was a “big problem” to violate it.

[95]        The grievor’s evidence and his attitude to his disability and the employer’s attempts to accommodate him make abundantly clear that any further accommodation would be fruitless. He has demonstrated that he cannot be forthright about his actions and is not yet ready to be accountable for his actions.

[96]        As a result, I find that the employer had accommodated the grievor to the point of undue hardship, there are not any mitigating factors that would support any further accommodation or reinstatement to employment and the grievance is, therefore, dismissed.

Summary dismissal can be complicated. While I often like to say that "just cause is not a lost cause,” employers must bear in mind that the threshold for establishing just cause is high. They will have to show that the employee engaged in misconduct, and that in light of all relevant factors, summary dismissal was warranted. This contextual approach is critical, and will also take into account any need for accommodation or other mitigating factors.

Procedurally, employers must ensure that they provide clear guidance to their employees regarding what is acceptable and what will happen if they engage in unacceptable conduct. Furthermore, when imposing last chance agreements or other mechanisms, they must ensure their process is fair and that no loopholes or irregularities can be found that would invalidate a dismissal.