To avoid paying severance, just cause must be established

If an employer wants to avoid paying a severance package after a termination, it has to establish just cause. That is no easy feat.
A man we will call Mark worked in a furniture warehouse for 20 years assembling furniture from the factory and carrying out other duties. In his 18th year, another employee complained that Mark was making jokes that made the employee uncomfortable. The employee said that Mark was harassing him. Mark received a warning letter from the employer not to make jokes.
At the end of his 19th year, Mark was involved in an incident with another employee where he pushed him into a trailer. The employee suffered injuries and made a WSIB claim. The operations manager wanted to terminate Mark there and then but the owner wanted to give Mark a second chance since he had been a loyal employee for so long.
I would pause to note that violence in the workplace will almost always be just cause. An employer has an absolute obligation to protect the safety of the other employees and there is no question that Mark could have been fired on the spot with no severance package.  
13 months after that incident, a manager who Mark did not report to saw him eating a sandwich in the warehouse while he was unpacking a box of furniture. The manager told him that he knew that there was a policy against eating the sandwich in the warehouse and Mark replied with, “I will f***ing do what I want in this f***ing warehouse” and proceeded to continue eating the sandwich.
The manager reported this to Mark’s boss and within a few days he was terminated. When Mark realized he was being fired, he swore at his former boss and punched him.
In following weeks, Mark created his own picket signs and started picketing in front of the company building and followed a few of the managers home in his car, flipping them the finger for good measure.
Apparently, Mark didn’t limit his picketing to public property and eventually the employer got an order from a judge keeping Mark off the employer’s land. In addition, a few weeks later, he was charged with assault as a result of the termination punch.
All of this ended up before a Labour Board Tribunal in Nova Scotia.
The usual rule is that anything an employee does after they are terminated is irrelevant to whether or not there was just cause at the moment of their termination. So, when Mark punched his former boss after he had been told he was fired and then began picketing the warehouse and following employees in his car, none of that should have been considered. But consider it the Tribunal did. It found some cases that said that it was okay to consider what Mark did after he was terminated, “if it helps to shed light on the reasonableness and appropriateness of the dismissal”. That’s just bad law. Mark should have been judged only for what he did within the context of his employment, not what he did after the moment he found out that his job of 20 years was gone and that his family’s means of support had disappeared. The Tribunal did not like Mark. As a result, they wrote some bad law.
If we ignore what Mark did after he was fired, we can agree that 13 months before he was terminated he assaulted someone.  But it was 13 months before. The employer could have terminated him but they chose not to. You can’t say to an employee, “I have just cause to terminate you now but I am going to wait and use it at some future date whenever I like.” It is not that Mark’s past behaviour wasn’t relevant to his outburst in the warehouse. But it has to be admitted that it was over a year since the incident.
Mark’s behaviour in the warehouse was inappropriate. He knew perfectly well that food was not to be eaten in the warehouse and his language to his superior was inappropriate.
But after 20 years, is it possible that Mark should have been given a warning, or a suspension for a week without pay rather than losing his job altogether?
From one perspective, we can all say that Mark sounds like the kind of person who got what he deserved, but the moment we agree to let general impressions decide someone’s legal entitlements, we are all lost.
We may resent the efforts criminal defence lawyers put into defending guilty people, until the day somebody we care about is charged with a crime they did not commit. Then we want all the rules to be followed and all the defences to be available. We want the law to scrupulously fair.
Mark didn’t help himself when he completely denied under oath that the swearing incident in the warehouse took place even though there were three witnesses. But again, the only thing should be relevant is the state of the world at the moment the employer handed him his termination letter. Anything that happens after that is irrelevant to the termination of the relationship.
As published in the Hamilton Spectator, November 1, 2010
Ed Canning
Ed Canning
P: 905.572.5809