In a six-day trial, Jason Wong represented a Bell Canada store manager to fight her termination: Hussey v Bell Canada, 2019 CanLII 883 (CA LA). Bell fired her for cause, meaning that she would not get any severance or employment insurance, or EI benefits. Bell alleged Jason’s client breached Bell’s Code of Conduct, including the following:
Failed to clock in or out consistently;
Failed to report her absences and lateness;
Allowed her employees to close the store alone, posing a safety risk;
Receiving pay based on 37.5 hours, even though she did not work those hours; and
Setting a bad example to her employees based on the above;
While some of these allegations were true, the employee countered with the fact that even though Bell had certain policies in place, they were not consistently followed.
Further, while the employee regularly failed to punch in or out for more than a year, Bell only warned her once, and even promoted her twice after the warning. It was clear that Bell did not take these issues seriously at the time.
Based on all the evidence, the Tribunal found that Bell failed to apply progressive discipline, and could not rely on its inconsistent policies. Bell did not properly warn the employee of her alleged misconduct. Bell also applied their policies in a discriminatory manner. It was discrimination because Bell did not terminate other store managers who had the same clocking record as the employee.
This case was a unique one because the employee worked for Bell, a federally regulated employer. Most employees in Toronto and Ontario are subject to the Ontario Employment Standards Act. Employees who work for federally regulated employers are subject to the Canada Labour Code. Federally regulated employers include:
Banks – CIBC, Scotiabank, RBC, TD, Tangerine, BMO, HSBC;
Telecommunications – Bell, Rogers, Telus, Freedom Mobile, Shaw;
Transportation – Purolator, FedEx, UPS; and
Radio and Television
Federally regulated employees have increased job security, similar to employees in unions. Specifically, these employees can only be terminated for cause. In other words, employers cannot simply terminate their employees for any reason by paying them severance. To terminate these employees, employers must have sufficient reasons to demonstrate that the employee’s misconduct was so bad that termination must have occurred. Further, progressive discipline is usually required to terminate for cause. This means a record of discipline, verbal warnings, written warnings, and chances to improve.
The Tribunal did not decide the employee’s remedy. Instead, it asked the parties to agree on what should be paid. If the parties cannot agree, the Tribunal can order Bell to reinstate the employee to her old position and pay the employee all lost wages, which is similar to severance. The maximum this employee could get for lost wages/severance is all the wages she would have earned from the date of her termination to the date of her reinstatement (in this case, 1.5 years of pay). Bell could also pay some of the employee’s legal costs.
Employer Errors: Policies should always be consistently applied. Employers cannot rely on policies in writing when it is never put in practice. Further, employers should be prepared to demonstrate that progressive discipline is applied, including clear written warnings, before terminating an employee for cause. This is even more so for federally regulated employers.
Employee Education: Being dismissed for cause, or just cause, is described as the capital punishment of employment law. Being dismissed for cause usually means no severance or EI. Most employees should consider whether the reasons for their dismissal was justified. Not all misconduct will mean a termination for cause. Further, fighting terminations for cause could get an employee EI and severance to help them before they start a new job. If you work for a bank, telecommunication, or transportation company, you may be entitled to much more than just severance.
*Jason was co-counsel with James LeNoury, the lawyer who successfully argued the Wilson decision at the Supreme Court of Canada. The Wilson decision was a ground-breaking case, which enhanced the protection of federally regulated employees (e.g. employees of banks, telecommunications, airlines, transportation) by providing them more job security similar to employees in a union.