The right reason for termination

By Jeffrey R. Smith

It’s often not easy for employers to terminate someone’s employment, at least without a cost. Employment and labour law in this country is tuned to the power imbalance that is often characteristic of the employment relationship, and leans towards protecting employees because of it. As a result, it can be hard to terminate someone’s employment for cause, because sufficient cause can be difficult to establish. While it’s easier to terminate someone without cause by providing reasonable notice or equivalent pay in lieu of, that can get costly in a different way.

Another wrinkle can come about when the possibility is raised that an employee was dismissed for reasons beyond what might be considered fair — such as grounds protected under human rights legislation or, in a unionized workplace, labour-related activity. But the presence of such things doesn’t mean an employer can’t go ahead and dismiss an employee, as those things didn’t play a role in the decision to terminate.

Let’s look at the case of an Ontario wine store employee from a couple of summers ago. The employee was hired on a probationary period to start. Soon after he started working, the employee decided to look into the possibility of organizing workers from his and other stores run by the employer into a union. He signed a union card and began visiting other stores to discuss his plans with other employees.

The employee didn’t want his employer to know about what he was doing, so he kept things low-key and called ahead to see if management was at a store before visiting it. He often didn’t tell other employees his name and did his best to keep things quiet. The manager at one of the stores captured the worker talking to his employees with surveillance cameras and showed the footage to upper management, but the footage wasn’t clear enough to identify the employee and upper management didn’t pursue the matter.

One day, the employee was scheduled to open his store but didn’t show up. After the manager arrived, he called the employee, who finally arrived a couple of hours late. It turned out the employee’s schedule had been changed 10 days earlier and the employee hadn’t checked the new one. The store lost a couple of hours of business.

It was determined that since the employee was still on probation, he had showed he wasn’t a good fit and his employment was terminated. The employee filed a complaint, saying the employer didn’t have sufficient cause for dismissal and his union organizing efforts played a role in his firing.

The Ontario Labour Relations Board found that the employee’s union activities didn’t play a role in his dismissal as the employer didn’t know about them. The worker tried to keep things quiet and, though the employer had an inkling such activity was going on, the worker was never identified as being involved — at least, not before the decision to terminate him was made. In addition, the worker was on probation, so the employer had the right to dismiss him if it legitimately determined he wasn’t a good fit — and the failure to check his schedule and show up to open the store was a reasonable basis upon which to make that determination, said the board. See Krauter v. Constellation Brands Inc., 2016 CarswellOnt 18760 (Ont. Lab. Rel. Bd.).

In the above case, the fact that some union organizing activity was going on meant that the employer had to be careful not to interfere — which it didn’t. It was able to prove that it didn’t know the employee was involved and therefore it played no role in the decision to fire the employee — on its surface not an unreasonable or outrageous decision regarding an employee on probation, as that’s what probationary periods are for.

While there are many factors that can affect an employer’s ability to terminate employment, they don’t always mean that decision can’t be made.