When an employer dismisses an employee without cause, the employee’s work performance prior to termination is generally considered to be irrelevant. Ontario’s legal framework is concerned only with determining whether the employee was dismissed without receipt of either reasonable notice (in accordance with the common law or a written contract, as the case may be) and if not, calculating the value of damages that should be paid.
There is a limited exception to this general rule. Where an employee has been dismissed for cause (i.e. serious misconduct), the employer will, in those circumstances, be entitled to particularize the conduct upon which it relies to assert a breach of trust in the employment relationship. When cause is proven, the effect is to deny the worker any right to notice of dismissal, or pay in lieu thereof (subject to any minimum statutory requirements).
Motion to Strike Allegations of Misconduct from Statement of Defence
In Kaminsky v. Janston Financial Group, the Ontario Superior Court of Justice heard a motion brought by a wrongfully dismissed plaintiff to strike portions of the defendant employer’s Statement of Defence.
The plaintiff argued that the defendant employer pleaded she had been dismissed without cause (at paragraph 5 of its Statement of Defence). Thus, her performance prior to dismissal was now irrelevant.
The plaintiff accordingly sought to strike from the Statement of Defence four paragraphs under the sub-heading “Performance Concerns.” The impugned paragraphs assert that the plaintiff failed to carry out her duties loyally and diligently and that she worked for another business on paid company time.
In granting the plaintiff’s motion, the Court found that:
the defendant pleaded unequivocally that the plaintiff employee was dismissed without cause;
the defendant could have amended its pleadings to assert cause for dismissal, yet elected to not take this step;
performance concerns are irrelevant in the context of a dismissal without cause; and consequently
“portions of a pleading that are irrelevant and inserted merely for colour and constitute ‘inflammatory attacks on the integrity of a party’ should be treated as scandalous and struck out.”
Lessons for Ontario Employers
The Court’s decision in Kaminsky is a useful reminder for employers to be careful in how they respond to wrongful dismissal claims. Where an employee is dismissed without cause, there is no lawful basis to include in a Statement of Defence allegations of misconduct or poor performance. Such allegations will be irrelevant. They are wholly disconnected from the assessment of whether an employee has been wrongfully dismissed and what, if any, additional damages may flow from the employer’s breach of the employment contract.
Employers that nonetheless try to plead poor performance in the context of a without cause dismissal should be prepared to contend with a motion to strike the impugned pleadings and pay the costs associated with having the plaintiff take these steps.
Finally, while an employer is permitted to (and should) plead an employee’s misconduct when asserting cause for dismissal, the threshold to justify a cause dismissal is high. An employer will only be able to prove cause where it can establish that the employee’s misconduct is so serious that it has manifested in an irreparable breach of trust. Canadian courts are generally wary to find that this threshold has been satisfied, except in the most serious cases. As such, any employer that is considering a cause dismissal should consider seeking legal guidance from an experienced employment lawyer prior to taking this step.
Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. 613-238-4430 or info@vwlawyers.ca