Can an employer summarily dismiss an employee for one mistake? The short answer is that it depends on how big of a mistake it is. An isolated act of disobedience will not normally justify immediate dismissal but, in certain circumstances, dismissal can be warranted.
The leading case on point is Laws v. London Chronicle (Indicator Newspapers) Ltd.1 In that case, the court stated that the test to be applied is whether an isolated act of disobedience amounted to a repudiation of the employment contract or one of its essential terms. Additionally, there is a requirement that the disobedience must at least have the quality that it is wilful and connotes a deliberate flouting of the essential contractual conditions. The concept of a single act of misconduct has been dealt with by Canadian courts under the various grounds that warrant summary dismissal of an employee. However one defines the conduct, the test remains consistent. The court uses a contextual approach in the application of the test and the results turn on the particular facts of each case. Some of the more common examples that are often the subject of a wrongful dismissal action are discussed below.
Breach of Workplace Policy
An employee may be summarily dismissed with cause for a single incident of wilfully breaching known and reasonable workplace policies. Where the nature of the employee’s breach is sufficiently serious, having regard to all the circumstances so as to constitute a repudiation of the employment contract, the employer can terminate the employee immediately for just cause.
There have been cases, however, that have found that an isolated transgression2 or error in judgment,3 although on its face a deviation from the employee’s normal behaviour, does not amount to a serious enough transgression to repudiate the employment contract and justify summary dismissal.4 Often the courts will have regard to the nature and force of the policy and the length of the employee’s service when making a conclusion with respect to the application of the test. Even the breach of what may be considered a significant policy may not justify the dismissal of a long service employee, where the court finds the employee is entitled to a second chance.5
The court has also set the standard higher to immediately dismiss a long‐term employee who holds a position of some responsibility. In other words, a lower level of misconduct is required to dismiss an employee in a lower position or whose employment is of shorter duration.6 However, where the isolated act meets the test in Laws v. London, just cause will exist.
The honesty of an employee is key to the employment relationship and, on that basis, isolated acts that call into question an employee’s trustworthiness can often be grounds for summary dismissal. There appears to be a difference between isolated, relatively minor forms of employee dishonesty, and serious acts of dishonesty, such as theft and fraud. Historically, dishonesty was always cause for dismissal, even one isolated act. Today, the courts take a contextual approach that considers the nature and seriousness of the dishonest act. The principle of proportionality used in this analysis seeks to balance the severity of the employee’s misconduct and the sanction imposed.7 Applying the Laws v. London test implicitly adopted in McKinley, the test in this scenario is whether the employee has been dishonest to such a degree that it is incompatible with his or her employment relationship.
A single incident of insubordination will amount to just cause only in exceptional circumstances. Where an act of insubordination strikes at the root of the employment contract, showing in effect that the employee has repudiated the contract or one of its essential terms, it is cause for dismissal.
In Amos v. Alberta,8 the Alberta Court of Queen’s Bench outlined an approach to the question reminiscent of wilful disobedience, in considering whether a single incident of insubordination may constitute cause for dismissal:
Usually, one instance of insubordination will not be sufficient to summarily fire an employee. However, one incident of insubordination can be enough, if:
- the insubordination is grave
- it consists of wilful and deliberate disobedience of an order
- work rules were made known to the employee
- work rules were consistently enforced
- work rules were clearly communicated to the employee
- the work order was authorized, that is, that it came within the scope of the worker’s duties
- the worker was made aware, unequivocally, that discipline is the penalty for disobedience
- the work order was lawful and reasonable in content
- the employee has no reasonable excuse for disobedience
- the breach is serious
In summary, the court will assess all relevant circumstances in the context of the Laws v. London test to determine if, in a particular case, a single act of insubordination will justify summary dismissal.
In several cases, the courts have attempted to break down an isolated act into several smaller acts to justify dismissal.9 While the Laws v. London test is not always referenced in a court’s assessment of a single incident just cause defence, the language used is usually consistent with this foundational test. A court will always engage in a contextual analysis, balancing the misconduct of an employee with the severity of the sanction to determine whether it is, indeed, one strike and you’re out.