Dismissals Demystified: With Cause, Without Cause and Constructive Dismissal

Employment lawyer Stuart Rudner joins First30 CEO Amy Davies in this episode of Coffee ’n’ Law for an in-depth discussion on dismissals and terminations.

Amy and Stuart talk about termination as a legal risk for organizations, and misconceptions like the “one month per year” severance. Stuart explains the important distinctions between termination with cause and without cause, and why employers often have more flexibility than they realize.

In this episode’s “Spill the Tea” segment, Stuart describes an instance of employee misuse of company phones by sending and receiving inappropriate texts and images, and the positions of the employees involved proved even more shocking.  

Connect with Stuart Rudner:
On LinkedIn: https://www.linkedin.com/stuartrudner/
Visit Rudner Law: www.rudnerlaw.ca
Get your copy of Stuart’s book, You’re Fired! Cause For Dismissal in Canada, here: www.rudnerlaw.ca/publications/

Connect with Amy Davies:
On LinkedIn: linkedin.com/in/daviesamy
Email: amy@first30ready.com
Visit First30's website: www.first30ready.com

HR Law Canada
Stay up to date with employment law news by subscribing to HR Law Canada: www.hrlawcanada.com

This podcast is produced by Storyphora, www.storyphora.com, info@storyphora.com
#amydavies #coffeenlaw #employmentlaw #HRleaders #termination #workplacelaw

Transcript

SPEAKER_03 0:00

When you want to show that you have just cause to dismiss someone, you're basically telling a court that you could not be expected to continue to employ them. Their employment relationship has been irreparably harmed due to not only the misconduct in question, but uh all of the relevant factors. So how long they've been employed, is their prior disciplinary history, what's the nature of their job, how much trust you have to have in them, but also how they respond when confronted. That, you know, when I do my updates to the book and I review all the cases, the employee response is often the critical factor.

SPEAKER_01 0:33

Workplace law is complex and constantly changing. It can be hard to keep up, and the risk of getting it wrong can be costly for businesses. The Coffee and Law Podcast is here to help HR professionals and employers stay informed. We'll cover what's changing and how to navigate real workplace situations and everyday people decisions. So grab your favorite warm drink and join us for engaging practical and educational conversations with top experts in workplace and employment law.

SPEAKER_00 1:07

This podcast provides high-level general information. The perspectives shared by our guests are for educational purposes and do not constitute legal advice. If you have a specific question or concern, please consult a qualified lawyer.

SPEAKER_01 1:22

Hi everyone, it's Amy Davies, founder and CEO of First30, and also your Coffee and Law podcast host here to remind you that First 30 offers career transition and outplacement services. So if you have terminations and layouts coming up, this is a really good way to mitigate risk to your business and help your exiting employees recover from the job loss and get back to work. You can find out more information at www.first30ready.com forward slash outplacement, or you can reach out to me, Amy AMY, at first30ready.com. All of our programs include live coaching and a year of access. And in a tough job market, that can be very important. Now, back to our show. Welcome back, everyone, for another episode of the Coffee and Law Podcast. And I am so thrilled to have Stuart Rudner with me today to talk about. Well, maybe it's like a bit of a difficult topic, but you're gonna make it really easy for us, Stuart. Um, we're gonna be talking about all kinds of dismissals. Um, and I always have, Stuart. You and I met re a few months ago at an HR Law Canada event. And of course, HR Law Canada is our partner on this podcast. And I will tell you, you have the best reputation. I heard from so many people before because I sponsored that event, and they kept saying, Oh my goodness, Stuart Brenner is gonna be there. He is the best. And I can't say I was disappointed when we met. We had such a nice day, and that was such a great event. Um, I also hear you're an excellent mediator. Uh, so maybe one day you'll have to come back and do an episode all on mediation.

SPEAKER_03 3:17

Oh, I would love to do that. I think I think we'll have more than enough to talk about on the topic of dismissals, but next time we'll talk about mediations.

SPEAKER_01 3:25

Yeah. So thank you very much for joining us today. So, where do you want to get started? This is, as you know, you kind of alluded to, it's a huge topic and one that's really important for HR and employers to understand because this happens, right? Separations happen. So, where should we get started with our conversation?

SPEAKER_03 3:45

That's a that's a tough question. Well, well, first of all, I will say thank you. Thank you for having me on the podcast. I loved the first episode, it was great. So I was really flattered when you asked me to be on this one. And I have to say, when I met you at the HR Law Canada conference, uh, I had also heard fantastic things about you. And you did a great job in your your brief role that day. So I think this is great in terms of you know where we get started. And your in your intro, you said you're hoping I'll make dismissals easy. I'm not sure if I'll make them easy, but hopefully I'll make them well, if nothing else, more interesting. But also, like I'll start by saying this dismissals are the biggest source of potential risk and liability for organizations. So it is a topic that I never we never stop talking about. You know, and I wrote a book about just cause for dismissal. It's called You're Fired. I wrote it.

SPEAKER_01 4:34

Oh wow, okay. We'll have to check that out. Do you have is that online? Can we get it somewhere?

SPEAKER_03 4:39

You can get it through Thompson Writers. I'll be happy to share the link with you.

SPEAKER_01 4:42

Yeah, share, we'll share it in the show notes as well. Thank you.

SPEAKER_03 4:45

Oh, I probably definitely appreciate that. And I wrote it, I guess about 13, 14 years ago now, but it's a loose leaf. We update it twice a year, so I'm always reviewing the case law. And it's this is a topic that's never going to go away. But what strikes me, and I know we'll get into this, is there's so much misinformation out there. There are so many myths, so many misconceptions. People have ideas in their mind that they think are true and they're not. And then also companies just get into patterns where they do every termination the same way when they don't even realize they have options. So I want to talk about terminations with cause, without cause, options to employers, how you pay someone out. Uh, because structure dismissal is a big one now, especially in the return to the office.

SPEAKER_01 5:23

Yeah, I'm really interested in that one for sure. Yes.

SPEAKER_03 5:26

So, where do we start? Why don't we start here? I I like I mentioned before we started recording, I made myself some notes about things I've thought of, like common myths or misinformation out there. Why don't I throw a few at you and then you can probably kind of you know take it from there? Uh so common myths we hear. One is that severance is a month per year. Uh, that never seems to go away. Some people think it's a week per year, some people think it's a month per year. The simple reality is there is no simple calculation, it's far more complicated than that. So that's probably the most common myth.

SPEAKER_01 5:57

Uh that is a common myth because it's something we hear a lot. And if we have anyone listening from the US, because we do have a few uh US listeners as well, who are thinking about starting or you know, getting more involved with the Canadian side of their business or setting up business in Canada, we have a very different approach to severance and um than they would in their in the US as well. So it's all very different depending on where you are.

SPEAKER_03 6:25

Great point. Uh and yeah, we are not, we're definitely not the 51st state when it comes to employment law. Uh we don't have at will employment. So yeah, we work with a lot of clients in the US and we have to make sure they understand that it's very different and severance. You know, severance can be up to two years. Uh, so it's not inconsequential. So that was one is a month per year. Another one is when it comes to firing someone, which we usually use that term to mean dismissing with cause. For those of us who are jaded and cynical, people say, Oh, you can never fire anybody in Canada. That's definitely not true. I've written a book, as I said. Every year I review cases where dismissals for cause are upheld. But the other common myth is that it's a three strikes in your out rule. So you have to give two warnings before you can fire someone. And that is absolutely not true. Now, it may be true in the unionized environment with a collective agreement, which says first offense is warning, second offense is suspension, third offense is dismissal, or something like that. If you're not unionized, then you can fire someone for a single incident if it is egregious enough, or you might have a hundred incidents and you still wouldn't have despair them. Another one that's come up, well, it's come up a lot, I guess, ever since the rise of social media, really, is this view that uh you can't be disciplined or dismissed for what you do off duty, uh, particularly what you do online. And people seem to think, oh, we have freedom of expression, so you can't be fired for what you say online, which again is absolutely untrue. Although generally what you do on your own time is your own business. There's always been laws in place that say that if it impacts the employment route relationship or the employer, it can lead to discipline or dismissal.

SPEAKER_01 8:00

Interesting. It's yeah, all of the things you you don't consider, right? And I would think that with employees being online so much as well. I mean, all of us being so online, it's something that employees should really be aware of that not everything, everything will fly.

SPEAKER_03 8:18

Yeah, I think employees need to be aware of it. A lot of people don't realize that what they post online can come back to haunt them in the job, uh in the job context. So that's enough. I'll throw one more at you and then I'll sure which way you want to go from here. It's more of a common mistake, I guess, for employers is that they treat every single dismissal the same way. So, in other words, they always give someone a lump sum payout. When they left, they would go without cause. And and a lot of employers don't realize that this is probably one of the few areas where employers have complete discretion. You could provide a lump sum, you could give salary and benefit continuance, you could do some sort of combination of the two. You can also give working notice. Uh, and that's often a controversial topic, which I'm happy to get into with you. Um, but you can literally say to someone, your employment will end a year from today. But during that year, you're expected to continue working, and of course, we'll continue paying you. But at the end of that year, you would not necessarily have to pay out any severance at all. From an HR perspective, that's not always great, but it can be a good approach in the right circumstances. So my point is just that most employers don't realize they have flexibility and not every not every dismissal has to be conducted the same way.

SPEAKER_01 9:28

You know, I really do love so at first 30, we've written a blog about um the amputation approach versus the soft gloves approach to layoffs. And I do love working notice for layoffs when possible because it just feels so much more civilized and it makes your current employees or the ones that are left behind feeling so I know I understand that it is a difficult one for different organizations for various reasons, but I really do like it when you can do it as an option.

SPEAKER_03 10:03

Yeah, I think it can work really well in certain circumstances. Like, for example, if you're closing down the business, you know, a little while ago we worked with an accountant who'd been practicing for something like 40 years, uh, and he was gonna retire because he was in his 70s. So he decided that it was gonna be a two-year window. And so he asked all of his staff to stick around for at least most of that two years, help him with the transition, because he was transitioning to another accountant. They all understood it wasn't them, you know, it wasn't firing them, he was closing down his business. It often helps if you dangle a bit of a carrot at the end. So if you say if you stick around, if you do a reasonable job, you'll get some sort of lump sum payment at the end, that helps. And I think it can work really well in those circumstances.

SPEAKER_01 10:42

So here is something I hear a lot, and I would love your perspective on it. So people often will say, if possible, just avoid any dismissal with cause. So if you have, say, a problem employee, wrap it up in uh restructuring, or if you have an event coming up, wrap it up in that. Now, here's one thing I think about, and you you can tell us what the answer is to this. But what if you actually need that role and you let them go and then you're going out and rehiring? So I think there's some complexity there. So I'd love to hear your thoughts on trying to avoid uh dismissal with cause and wrap it up into something else. And what are the implications, you know, what are the things that maybe employers aren't considering when they do that?

SPEAKER_03 11:30

Yeah, it's a great question. And there's a lot to unpack there. I mean, look, obviously I've written a book. The book is about yay thick. And so I adopted a bit of an expression when I wrote the book. I started saying just cause is not a lost cause. Um, because it is possible to fire somebody with cause in Canada, but it's not easy. In some cases, it will make sense. If you're talking about a long-term employee and your severance obligation is going to be substantial, then it may well make sense to go through the process of investigating, of progressive discipline, and if things don't improve, dismissal for cause, because that might be it might save you some money. But if you're looking at someone who doesn't have a substantial severance entitlement, then it might be easier just to avoid the dismissal for cause and just let them go. But I think it's important to remember in Canada, employees generally do not have job security. Unionized workers, again, are different. Generally speaking, you can let somebody go at any time for almost any reason. And I only say almost because it can't be a human rights ground. You can't let them go because of their gender, disability, etc. But otherwise, I could just decide that I don't like people who wear blue jackets. Sorry, Amy.

SPEAKER_02 12:36

What? Just for those listening, I happen to be wearing a blue jacket.

SPEAKER_03 12:39

Oh, yeah, sorry, I'm just not like yes. Uh you know, so I might decide that I'm I'm gonna fire everyone who comes in today wearing a blue jacket. And that might be horrible HR, and I don't recommend it. But there's nothing unlawful about that, as long as I give those people whatever notice or severance they're entitled to. So back to your scenario, you've got a problem employee, but it might be more costly from a resource perspective, money perspective, time perspective, to go through the process of a dismissal for cause than it would be just to package them out. You can just package them out. The key point there, and it gets back to what part of part of your question, you don't need to give a reason if you're dismissing somebody without cause. If you say we're letting you go because we've eliminated your position, and then two weeks later you post for that same position, now you're in trouble because now you were dishonest, which is bad faith, and you can be on the hook for more damages. So the way to do that, if you've decided you don't want to go down the with cause road, is just to dismiss them without cause, make sure you give them whatever severance they're entitled to and move on. And that can be a good business decision.

SPEAKER_01 13:48

You know, you see you I see it from both sides, right? Both the employee side, because there's we often have difficult people we work for, but we also often have difficult people in the workplace. They haven't done anything glaring, but they're making, you know, they're making it things really tough. They're spreading, I don't know, bad, they're just making the workplace uh unenjoyable for others, let's say. And it can often be hard to pinpoint what is the issue, but it is really causing problems. Like if they're gossiping about other employees all the time and and causing friction between people. Um, but then it's like, how do you prove that? And what are the steps you take? So I think we should talk and you know, tell me if I've said anything crazy there. But it's just what I see every day. It's not like these huge issues, it's these small issues that cause big problems.

SPEAKER_03 14:42

Yeah, no, no, I agree. And yeah, and yeah, you haven't said anything crazy at all, but you're right. A lot of times, like it's very rarely black or white, it's often shades of gray. And sometimes you've just got that employee that, you know, they haven't done anything really egregious, but you just know that they're a negative force in the workplace. So yeah, you can you can dismiss them and you can pact them out. And here's where, you know, we often in our firm, we love to focus on the more proactive strategic side of things. Uh, so contracts. Contracts are employer's best friend. If you have a contract with an enforceable termination clause, and that's a big caveat, because as we talked about at the HLI Canada conference, I mean, courts will invalidate termination clauses whenever they get the chance. So it's got to be written perfectly, but it can be done, and we do it for clients all the time. If you've got a good contract with a good termination clause, your severance costs can be relatively low. And it's definitely going to make sense to get rid of that employee that you know is just a problem in the workplace, even if you're not doing it on a four-cause basis.

SPEAKER_01 15:43

Wow. You know, Nina Gupta, who we both knew, is a both a friend of both of ours, we just recently did an episode on employment agreements as well. Um, so that might be a good one to go back to for people who need to go over that uh uh that information too. Um, okay, so definitely it needs to be in your employment contract. Uh and I think I'm feeling like, you know, obviously with an employment contract, if you're thinking of letting someone go, you need to be calling Stuart, right? Like you need to have a lawyer involved in this um before the termination happens. Like my perspective, and tell me if you share it, I think you're, I think you're going to, Stuart, but is like get a lawyer involved earlier, as early as possible in the process.

SPEAKER_03 16:33

Yeah, clearly you're you're preaching to the choir here, but yes, yeah, it's such a common mistake. And I gotta say, it's of it's something so frustrating for our team because we get these calls from either existing clients or new clients. They call us because they just received either a demand letter from their former employees' lawyer, or they received the statement of claim. And we'll say, How come you didn't call us before you let them go? I'll say, Oh, well, we didn't want to incur legal costs, so we just figured we'd do it ourselves. Uh, which drives us crazy because now it's going to cost them a lot more money to fix the problem. And just as a bit of an aside, that's one of the reasons why our firm is really trying to move away from hourly billing. Uh, so we do a lot of fixed fee work and we have what we call our our termination package. I'm putting air quotes around it, yes, uh, which is a fixed fee, which and we'll coach the client through from start to finish, you know, providing an opinion as to what the employee's severance entitlement is. We'll draft the dismissal documents, we'll coach them to the termination meeting, etc., for a fixed price. Or the other thing we're experimenting with lately is subscription arrangements. So, you know, I think of it as a Netflix model. So you pay a fixed monthly fee and you get your day-to-day legal advice. So you the the bottom line is we don't want our clients to be scared to call or email us when they have a question. And we much rather they call us before they do something than after they do it, and we've got to fix it. So, yeah, as as you suspect that I'm completely on the same side as you, it makes sense the advice first.

SPEAKER_01 17:58

I think what happens is that people are afraid of legal fees, but the kind of legal fees that we should be afraid of are the ones once the damage is done, not the preemptive legal fees. The preemptive legal fees are the friendly fees. It's not as much as what people think. It's the the big scary ones are after the fact, after the wrong decision has been made, um, or the contract isn't airtight, that's when the problems occur.

SPEAKER_03 18:29

I'm gonna steal that expression, the friendly legal fees, because I never heard that before.

SPEAKER_02 18:34

I just made up on the spot.

SPEAKER_03 18:36

I love it, but it's so true. Like we've often had, you know, we've talked to people and I've said, you know, you have to need to update your contracts or a date, it's not enforceable. And I'll get things like, oh, well, it's not in the budget for this year. And you know, I'll often push back and say, well, you know, it's a wrongful dismissal claim in the budget for this year because that might be the result. And then you don't have the the option to say no. Uh so yeah, I mean, to us, like obviously we work with our clients, we help them put out the fires, deal with the issues. But what we really love to do is then then debrief, figure out how it could have been avoided, and do that strategic work. It's it's far, it's a far better investment.

SPEAKER_01 19:12

Outplacement and career transition support make a real difference for employees experiencing terminations or layoffs. Offering these services also reduces legal and reputational risk for employers. All of First30's outplacement programs include access to a live coach along with one year of access to our career transition portal, job search resources, and much more. Programs start at$985 per participant. You can find information about our programs and pricing at first30ready.com forward slash outplacement, or reach out to us anytime at info at first30ready.com. So I want to we've talked a little bit about paperwork in terms of contracts. Uh, when we're talking about terminations with cause, I do want to talk a bit about paperwork. And then after that, I really do want to talk about constructive dismissal because as you and I were talking beforehand, it's coming up a lot more with the back to the office. Um, I I want to say demands, but preferences. We'll call them preferences of employers. Um, so I'd like to talk about those two things. So if you're an organization and you're um parting, you're planning to part ways with an employee, and let's call it forecase, right? What do we have to do in terms of getting our ducks in a row, paperwork, investigations, et cetera? What do you recommend to your clients?

SPEAKER_03 20:40

Yeah, I mean, I'll I'll give you the the typical lawyer's answer to start, which is it depends. Sure. Um, but you know, if you know, as I said at the beginning, just cause for dismissal is viable, but the threshold is really high. A lot of courts have referred to it as the as the capital punishment of employment loss. That's that's how seriously they take it. Uh so what courts are usually going to want to see is well, I'll take a step back. When you when you want to show that you have just cause to dismiss someone, you're basically telling a court that you could not be expected to continue to employ them. Their employment relationship has been irreparably harmed due to not only the misconduct in question, but uh all of the relevant factors. So how long they've been employed, is their prior disciplinary history, what's the nature of their job, how much trust you have to have in them, but also how they respond when confronted. That, you know, when I do my updates to the book and I review all the cases, the employee response is often the critical factor. Uh, so what I often say is you could have two employees who committed the exact same misconduct, but one of them was apologetic and forthright and gave you assurance this will never happen again. Whereas the other one tried to cover it up, lied about it, threatened witnesses, and didn't give you any sense that this would not happen again. In that scenario, the the the The sort of starting or the culminating incident, what they did was exactly the same, but the results probably gonna be different. A court's probably gonna say that the first employee should get another chance, whereas you could fire the second employee for a cause. So to bring this back to your question, if it's a form of misconduct that is your your culminating incident, what you're gonna want to do is put the employee on a paid administrative leave, not a suspension, because suspension suggests disciplinary action, which suggests you've already made up your mind. And then you investigate. Investigations can take many different forms, but one of the key parts of it will be that you need to confront the employee and give them a fair chance to basically tell their side of the story. You know, is there, do you have something wrong? Were there any mitigating factors? Are there assurances that it will happen again or not happen again? And then you need to take all that into account. And if it's something where, you know, it's there's past disciplinary history, have there been warnings? Courts want to see very clear warnings that if this behavior continues, there will be further disciplinary action up to and including termination. Um, so that way an employee can't say, Well, I had no idea it was that serious. I didn't know that I could be fired. And I have to say, this is where most employers fall down because there might be some note in the file that the employee, you know, was coming in late regularly. So they spoke to him and told him it was unacceptable. But there was never any mention of the fact of what the consequences might be if he continued to do that. That's what courts are gonna look at. So it is possible to fire someone based upon a single incident. It's very hard. More often than not, they're gonna want to see the past warnings and they're gonna want to see the investigation and the employees' response. And you need to document all that. And I'll say one more thing because I know you want to get to construction missiles.

SPEAKER_01 23:47

Yeah.

SPEAKER_03 23:47

The investigation is not a prosecution. You're not trying to prove that they're guilty so you can fire them. Courts want investigations to be fair, impartial, thorough, and timely. But the key parts are the first two: fair and impartial. You can't be going in there with an agenda.

SPEAKER_01 24:04

We did have actually run a whole episode on workplace investigations as well. So if this is something that your organization is dealing with, you can look back for that episode too. Stuart, does your firm also run workplace investigations?

SPEAKER_03 24:17

Yeah, so I used to do investigations. We don't do the investigations anymore. We will oversee them. So if we have a client, okay yeah, if we have a client who thinks an employee is guilty of misconduct, we'll engage the investigator, we'll oversee it. And then we will, of course, advise the client based on the findings. Um, but you can't, I mean, you can't be both counseled to an organization and the investigator. So we prefer to be counsel.

SPEAKER_01 24:40

One thing that I was running through my mind as you were talking about all this and talking about people coming late and having a note in their file is I lived in Europe for several years, several years ago, and the culture there was so direct in parts of Europe anyway, is so direct. I'm thinking of my friends that are Dutch. And I think sometimes I think in Canada we suffer because we're not, we're a little bit indirect. And directness in these types of situations, even though it might be uncomfortable, is in is very important for documentation. And if you know you need to take the next step. So being direct, although it's maybe not in our nature, can be your best friend.

SPEAKER_03 25:21

Totally agree. And uh I don't want to digress too far, but I've seen this countless times where managers were never really trained on how to have difficult conversations. So they avoid the direct conversation and they think they're being nice. But then when you know things get worse and worse, and now they go to HR and say we got to fire this person, there's nothing in the file that's gonna support it. So yeah, that's you're absolutely right. That's a that is a big issue.

SPEAKER_01 25:46

Okay, so thank you. Our last topic, um, constructive dismissal, which always confused me so much uh until the last few years that I started doing the the webinars, the first 30 runs, and now these podcasts, I'm I have a good grasp of it, but a lot of people don't. So talk us through constructive dismissal. What is it and what are some of the risks?

SPEAKER_03 26:10

Yeah, well, you're you're certainly not the only one who finds it confusing. Uh so I mean, look, the the technical definition is that it is a unilateral and substantial change to a fundamental term of the employment relationship. So three key points there. It's got to be unilateral. If it's something that both parties agree to, it's not constructive dismissal. Second key point, it's got to be a substantial change. So courts have said minor changes, even minor changes to compensation, will not be constructed dismissal. And last is it's got to be to a fundamental term of the employment relationship. So if I just decide that, you know, Amy, I know your desk is over here, but we're gonna move it 15 feet to the right, that's not gonna be a constructed dismissal. But if I move you from the corner office to a cubicle, that might be because that has substantial implications and could impact your reputation and your role within the company. So so that's the the technical definition. And I always tell people it's really driven by contract. So yeah, your contract sets the starting point, you know, in other words, and I might as well bring you around to this whole return to the office manual.

SPEAKER_01 27:18

Yes, please, because that's what's gonna be on everyone's mind. Return to the office.

SPEAKER_03 27:21

I mean, I mean, it's fascinating. If seven years ago, if you had told me that I'd be spending so much of my time answering the question of, can I insist on my employees come into the office? I would have thought you were absolutely crazy.

SPEAKER_02 27:34

Um we grew up in a time where it was like you did what your employer told you to do, and if your employer said you be at the office, you were at the office.

SPEAKER_03 27:42

Yeah, there's no option of working from home. No, so uh and look, I think it's great that we've now kind of reassessed where and when we work to some degree, but again, it comes back to contract. So I'm amazed right now because everyone's overestimating their rights. Employers seem to think they can insist that everyone come to the office five days a week if they want to, and employees seem to think that they can refuse and insist that they're going to work from home. Um, and of course, the truth is somewhere in the middle. Uh, it will very much depend. So this is all a constructive dismissal analysis, unless there's some human rights accommodation if the person has a legitimate medical reason to work from home. Putting that aside, you start off with what does the contract say? So if you have an employee, and I'll I'll start with the easiest situation. Let's say that you have an employee who was hired long before the pandemic, used to work in the office, the contract says you'll work in our offices at, you know, 20 Toronto Street or wherever it is. Uh, they were sent home during the pandemic. The employer did the right thing and the smart thing, which was to keep saying, This is temporary, we reserve the right to bring you back. If they did all that, then the contract governs and the employer will have the right to insist that the employee return to work, either full-time or part-time in the office. Um, take the opposite scenario. If someone who was hired two years ago has never set foot in the office, their contract says you will work remotely from your home in Collingwood, Ontario. Um, unless there's something more, then their contract governs, and the employer does not have any right to insist that they come into the office any more than they have a right to say that they have to work in uh Hamilton or whatever the case may be. Um, so those are kind of two opposite ends of the spectrum. And then you've got the in-between, uh, the person who used to work in the office. They were sent home in March or April of 2020 because they had to. There was uh, you know, there were it was impossible to continue operating out of the office. But the smart, like I said, the smart employers were constantly communicating and saying, this is temporary, we're reassessing, we reserve the right to bring you back to the office. Some employers didn't do that. So I think for the first while it was understandable this was an emergency response. But after a year, two years, three years, five years of allowing someone to work from home without ever saying we reserve the right to bring you back, I would say that at some point they have probably accrued that right. Uh, because of course, contract is not only what's in writing, it's also based upon past practice. And if there's been no communication otherwise, they may have accrued the right. So when we look at all these situations now, and and to be clear, we we work with both sides, we work with employers and employees. It really depends on the individual situation. It's not, there is no one rule that fits all, even within one organization. You may have some people who have specific contracts, some people have no contracts, some people who were never in the office, some people used to be in the office. All these factors are gonna impact whether it's a constructive dismissal to insist that they come back to the office.

SPEAKER_01 30:46

And this is why even small companies they need to have your subscription model. They need to have someone to consult uh before making these decisions and get that all set up in advance because we don't know what's next. Um, and it's really important to be prepared for whatever the outcome is. I think you made that really clear. Uh, and uh I think that will be really very helpful to our audience as well. We're getting close to the end of the show, and I could just talk to you all day. Um, but I really did actually want to ask you our fun little end of the session, spill the tea. Uh, because we're a coffee podcast. We don't care about tea. So uh we're gonna spill some tea here. So, do you have any good stories for us that may surprise us? Maybe they're serious, maybe they're funny. Is there a story that you want to tell?

SPEAKER_03 31:38

Yeah, it's I'm I'm weighing two. So, you know what? I'm gonna try to fit two in. I'll try to do that. Sure. Because they're both just really fun and interesting. And and one, at least one of them has a moral as well. Uh, so the one that's probably more shocking, I'll start with. And this, you know, this went back many, many years. And of course, I'm not gonna name any names. Uh, but what was interesting is we this is back when I was working at a large firm, and I got a call from one of the partners who said, We've got one of our clients has an emergency, they need some employment law advice. I'm connecting you with the president and need you to talk to him and figure out what to do. Great. So, what the president told me was that they, you know, they were they used to supply telephones for or mobile phones for all of their employees, including their executives. And when their IT was going over some of the records, and I think maybe doing an update on the phones, they found that one of their employees had been not only texting with a colleague, but sexting with a colleague, uh including not only graphic terms and words, but some very, very graphic images and videos. Shocking enough, although I think it does happen a lot, but the the really shocking part was that the two colleagues that were involved, both in the same company, was, and this is a fairly large company, as you can guess, the director of the legal department and the director of HR.

SPEAKER_01 32:57

Ah, oh my goodness, this kind of feels like the Coldplay concert incident.

SPEAKER_03 33:05

Yeah, well, that's another example of you should know better. These were two people.

SPEAKER_01 33:08

But at least it was the good news is it was two ways.

SPEAKER_03 33:11

Yeah, but these are two people who clearly should know better and did not. So that was shocking. And I I felt bad for our associate at the time who had to go through all the images and all the texts and everything.

SPEAKER_02 33:23

Oh my goodness.

SPEAKER_03 33:24

Yeah, that's uh not a fun job. But so that was one which I just thought was like the sexting itself is I I guess not that uncommon. So it wasn't shocking. It was who was involved.

SPEAKER_01 33:33

Um, yes, the other one people who would know better, exactly, people who should know better.

SPEAKER_03 33:38

The other story I was gonna share, because I think it does have uh an interesting lesson when it comes to just college dismissal as well, which is to your point of contact legal first, do an investigation before and basically don't act hastily, never respond in haste or in anger or anything else. So there was a client that I used to work with quite regularly, and my main contact was the head of HR, who was just a great guy, just one of those down-to-earth, honest, direct people that you love to work with. Uh, but one day, this is around late November, the president of the company calls me. And I thought it was unusual because I don't think I'd spoken to him more than twice in about five years. He says, Stuart, you know, I can't believe I'm saying this, but we're gonna have to fire so-and-so, the director of HR. And I said, Okay, why? He said, I can't get over what I've seen, but I've seen the video, and it's true. He said, you know, this was like a sort of manufacturing facility with a small retail area in the front. And uh he said, We've got a big box at the front for a Christmas toy drive, and there's lots of stuff in there. And he said, I've got it on video where he went to the the box, took out some of the really expensive gifts, and took them back to his office. And he said, like, what else are we gonna do? We've got to fire him. We can't can't allow that. And I said, That just does not sound like him. Like, we've got to be like I said, from a personal perspective, I feel like we should investigate, but from a legal perspective, I'm advising you, let's do the investigation, get his side of the story before we take any action. So they listened, and uh, so we we they put him on administrative leave, like I always advise. And within a couple of days, we had an investigator confront him. And his explanation, which knowing him the way I did, I believed, he said, every single day at lunchtime, our receptionist leaves the front area. There's nobody there. We have people coming in from out outside, we have no idea and no control over who comes in. We had all these toys there, and I was worried somebody was gonna steal them. So I wanted to at least take some of the more expensive ones and lock them up in my office. And you know what? This is where you know, I always say that context matters and history matters. If this was someone who had been dishonest in the past, untrustworthy in the past, they may have said, No, that doesn't sound right. I think you're lying, I think we're gonna steal it. In this case, he'd been a long-term employee, no disciplinary history, known to be very honest. And we all gave him the benefit of the doubt. So instead of firing him, they basically brought him back. And look, I mean, who knows if he what was actually happening, but I tend to think he wasn't stealing them. So if they had fired him, I'm sure they would have faced a wrongful dismissal claim. They probably would have lost, which would have cost them a lot of money, and they would have lost a valued member of their executive team.

SPEAKER_01 36:27

So that must have been just so shocking for everyone involved. It must have been just a very difficult situation. I'm glad that you got them to take a step back. I I was out the other day and saw a car accident happen, like literally right in front of me. A woman didn't stop at the stop sign. And I was like, oh my goodness. And I was kind of getting all judgy in my own head. It wasn't a serious accident. So that was the good news. But she got out of the car and she was right. She said, I am so sorry. I couldn't stop. Like I put the brake on, but I slid right through. And when I looked down, I just saw slush. So she had just gone right through the stop sign. So I was so glad that I took a moment to process it all, right? Before saying, How could you not stop? Why did you run into that car?

SPEAKER_03 37:15

Yeah, it's a great example. But you're right. Never, never react in haste, especially as an employer. Just take the time to really assess what happened. And if it was mitigating factors, you know, I often see where you know an employee did engage in misconduct, but maybe they're they had some sort of alcohol issue. Maybe they're having some sort of mental health issue. There might be some mitigating factor. Better to find out before you dismiss than than later on.

SPEAKER_01 37:39

For sure. Stuart, this has been fantastic. I'm so glad you had the time to take to do this. Thank you so much for joining us today. Uh and like I said, everything, all your details will be in the show notes. Uh so if you um like what you heard and you're looking for legal counsel, uh Stuart's a great person to call. Like I said, I've heard nothing but great things. And if you love the podcast, please remember to subscribe, to give us a five-star rating, to like, to share it with your friends. Um we're doing really well, and that's all because of you. So thanks so much for being a listener and supporting us.

SPEAKER_03 38:20

Thanks for having me on, Amy. That was amazing, and I'd love to come back and talk about some more interesting issues.

SPEAKER_01 38:26

For sure. I would love that too. Okay, everyone, have a great day, and thanks for joining us.