What is the court’s power to prevent an employer from terminating an employee’s employment if that worker refuses to adhere to the employer’s mandatory COVID-19 vaccination policy?
In Blake v. University Health Network, 2021 ONSC 7139 (CanLII), Justice Sean F. Dunphy said, essentially, “none.”
This is an opinion piece and, yes, a bit of a rant.
Since the Ontario Court of Appeal’s decision in Waksdale v. Swegon North America Inc., 2020 ONCA 391, about which I blogged in my post Employment Law Isn’t Real, the Ontario Superior Court of Justice has taken an interest in ensuring drafters of employment contracts appreciate that there is fundamental difference between “just cause” at common law and “wilful misconduct” in Ontario Regulation 288/01, made pursuant to Ontario’s Employment Standards Act, 2000.
For example, in the recent decision in Steve Livshin, 2021 ONSC 6796 (CanLII), (released October 14, 2021,) Justice William Black writes,
“Just cause” is … as held in various cases, ... understood as a common law notion connoting a basis, from an employee’s performance or conduct, justifying termination of the employee’s employment without the need for advance notice.
…
As set out in various cases, “just cause” can be contrasted with the requirements of the ESA. Pursuant to O. Reg. 288/01, s. 2(1), para. 3, an employer can only withhold termination pay, severance pay and the continuation of relevant benefits in response to workplace conduct that amounts to “wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”.
Justice is Black is absolutely correct, “just cause” is the phrase understood as a common law notion connoting a basis justifying termination of the employee’s employment without the need for advance notice. And the reason that understanding exists is because that is exactly how the court almost invariably uses the phrase. In fact, I would submit, the court has only recently started parsing the wording between “just cause” and “wilful misconduct” for the purpose of striking down employment agreements; not to provide employees who might have otherwise been entitled to statutory termination pay a greater benefit.
And that is really my problem. In its reasons for decision, the court almost invariably uses the phrase “just cause” or “cause” to define a situation in which the employer is excused from providing a dismissed employee with notice of termination of employment or payment in lieu. It almost never uses (until recently) the phrase “wilful misconduct.”
If the court is going to be particular about how parties draft their employment agreements, it could at least use the language expected in its own writing.
If an employment contract is negotiated as part of a larger commercial transaction, can the sophistication of the employee and the fact that he was represented by counsel during contract negotiations, be pointed to by the employer if the employee later alleges that the terms of the agreement are illegal?
In a rebuke (although not express) of Justice Dunphy’s decision in Rahman v. Cannon Design Architecture Inc., 2021 ONSC 5961, (released September 15, 2021,) Justice William Black in Steve Livshin, 2021 ONSC 6796 (CanLII), (released October 14, 2021,) held that if an employment agreement is illegal, then its unenforceable and the sophistication of the parties doesn’t matter.
As a matter of law, can the manner in which an employer dismisses an employee impact the enforceability of a contractual termination provision?
In Humphrey v. Mene, 2021 ONSC 2539 (CanLII), Justice Gina Papageorgiou, after an extensive and thorough review of applicable jurisprudence, held that, in some cases, it can.
If you can get thorough this post without hearing Ryan Tedder’s voice singing “It's too late to apologize,” well you’re stronger than I am. “I said it's too late to apologize, it's too late.” (For those who don’t get the lyrical reference, or those who just want to hear the song, here’s the link: Timbaland - Apologize ft. OneRepublic.)
In November of 2020, I wrote a post titled “Refusing to Apologize for Inappropriate Comments Not Cause for Dismissal”. In that post I reviewed the Ontario Superior Court of Justice’s decision in Hucsko v. A.O. Smith Enterprises, 2020 ONSC 1346 (CanLII), in which Justice G.E. Taylor held that an employer was not justified in summarily ending the employment relationship because the employee refused to apologize for inappropriate comments and it could not use the previous findings concerning inappropriate comments to later justify the termination.
The employer appealed.
For reasons reported as Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, the Court of Appeal found that there was cause to terminate the employee’s employment.
Too late.
