With the Supreme Court of Canada set to weigh in on the issue of non-disciplinary terminations under the Canada Labour Code, and in light of that court’s recent clarifications on the matter of non-disciplinary suspensions, Lancaster’s experts will review fundamental and developing principles relating to administrative suspensions and dismissals in unionized and non-unionized workplaces. Questions to be addressed will include:
- Non-disciplinary suspensions: In what circumstances can a suspension be imposed on an employee for administrative or non-disciplinary reasons? How did the Supreme Court of Canada, in Potter v. New Brunswick Legal Aid Services, clarify the law in relation to an employer’s common law right to impose an “administrative” suspension on an employee for reasons related to the employee’s conduct? What factors will courts look to in determining whether an administrative suspension is just and reasonable? Are the same considerations applicable in the unionized context?
- Non-disciplinary terminations under the Canada Labour Code: Are non-disciplinary terminations permissible under the Canada Labour Code so long as notice or pay in lieu of notice and severance pay are provided? Does the Code require dismissals to be “for cause”? What is “unjust dismissal” under the Code if it is not dismissal without just cause? What is the significance of the Federal Court of Appeal’s decision in Wilson v. Atomic Energy of Canada Ltd. that federally regulated employers may dismiss employees on a “without cause” basis if the dismissal is not otherwise unjust? What labour relations consequences are expected to result from the decision being upheld (or denied) by the Supreme Court of Canada on appeal?
- Discharge for innocent absenteeism: When can an employee with a disability be discharged for non-culpable or innocent absenteeism? How do human rights considerations factor into the arbitral test used to determine whether dismissal for innocent absenteeism is justified? To what extent has the common law doctrine of frustration of contract been altered by the statutory duty to accommodate a disabled employee? Does frustration of contract due to illness relieve an employer of its obligation to pay severance and termination pay under employment standards legislation, or under a collective agreement? What constraints are there upon an employer in discharging an employee for innocent absenteeism (e.g. notice, benefit loss, etc.)? Is active termination by the employer required to trigger severance entitlements where an employment contract is frustrated due to employee illness or injury?
- Discharge for poor performance: How does the standard of just cause differ as between disciplinary and non-disciplinary termination? When will poor performance justify discharge in unionized and non-unionized workplaces? What steps must employers take prior to dismissing an employee for poor performance? When, if ever, will discharge be justified if substandard performance is due to a protected ground under human rights legislation (e.g. disability, family status, etc.)?