chap 11

• Company policy manuals


  Contain important company rules, including with respect to dress codes, probationary periods, benefit entitlements, sick leave policy, etc.
• Following the rules in a company policy manual

  • Ensures consistency in the treatment of employees and allows employee to know the standards of behaviour expected of them
• An employer's policy manual can not provide for lesser employment standards than what the ESA stipulates (otherwise it is unenforceable)
• Minor changes to worker entitlements can usually be made by simply notifying employees of the changes made (e.g., a slight alternation in coffee break times)
• If an employer's policies are clear and applied consistently

  • It is easier to build a "just cause" case against an employee
• Examples of just cause termination for breach of employment policy

  • Termination for "padding" expense account
  • Termination for repeated inappropriate internet or email use
• Bennett v. Sears Canada Inc.

  The Plaintiff's communications with the employer's HR representatives over-rode the employer policy and her employment contract which required "20 years of continuous service to qualify for retirement benefits"
• Bennett was awarded the retirement benefits and her legal costs by the court
• Consideration for the amendment of the employment contract

  Bennett continued to work for another three years
• It is difficult to imagine that Bennett would not have continued to work with Sears regardless of the position taken by the Sears' Head Office staff in 2005
• The Head Office representative who wrote the 2005 e-mail did not have the authority to essentially amend contractual terms binding not only on Bennett but also all of Sears' other employees
• To make a company policy a part of the employment contract

  • Ensure that the employment contract or letter of hire specifically incorporates the manual by reference into the contract, that the company policy is consistently applied, and that HR representatives and other supervisory employees communicate the policy accurately
  • Have employees sign off that they have received company handbooks and state in handbooks, that a failure to follow the handbook's policies "may result in disciplinary action up to and including termination of employment"
• Avoiding a constructive dismissal when changing employment terms


  • Avoid significant and immediate reductions to employee compensation (make them more modestly and bring them in over a reasonable period of time)
  • Give the employee ample notice of the change (in writing) and clearly tell them the consequences of not accepting the changes to their terms of employment (e.g., termination of employment)
• The mere offer of continued employment, where employee is already working under an indefinite contract of employment, does not constitute good consideration for the modification made to the employment contract
• Where a promise of continued employment can be good consideration for a change to a worker's terms of employment


  • If employer intends to terminate employee for cause at the time the change to the employment contract is set to occur, the employer's promise of continued employment can constitute good consideration for the change
  • Otherwise you need to give the employee a fresh benefit for the change, such as an additional vacation day with pay or a signing bonus in order for the change to be enforceable against the employee
• Employers should do performance appraisals


  • Give fulsome feedback to employees on actual poor performance and suggest methods for them to try and improve their performance
  • Allow the employee an opportunity to respond to a performance evaluation, both on the form itself and orally
  • Provide employees with a copy of the evaluation form and have them acknowledge in writing that they have received it (by having them sign an acknowledgement)
  • Provide employees with counseling and training and other opportunities to improve on deficient performance before terminating for cause for performance reasons
• Employers should use progressive discipline for employee misconduct

  • Use a verbal warning for a first occurrence, a written warning for a second occurrence, use suspensions of increasing lengths for subsequent occurrences, use a final warning advising the employee that their continued employment is in jeopardy if the problem isn't rectified immediately
• An employer should document everything in the progressive discipline process so that employers can terminate for cause without worrying that they will need to pay wrongful dismissal damages because they failed "to paper" the disciplinary process correctly
• Condonation by an employer

  Occurs when an employer is aware of the worker's misconduct, or ought to be aware of it, but takes no disciplinary action against the employee when it has a legal right to do so
• Daley v. Depco - Cumulative Just Cause


  • Depco took care to clearly lay out the facts, the penalty if any, and notably, as the employee proceeded through the various progressive discipline steps, specific reference was made to the prior warnings given, the dates of the offences, and the prior transgressions. By doing this, the employee was clearly reminded of prior warnings, while at the same time advised as to the consequences of future violations of company policy. The employee was asked to acknowledge receipt of copies of such notices in writing, while not necessarily being asked to admit an error. The employee's additional comments were also solicited.
• Reininger v Unique Personnel Canada Inc. - Lengthy Suspension Without Pay for Misconduct Occurring Outside Workplace Constitutes Constructive Dismissal

  The initial suspension for 90 days without pay was a proportionate response to the drinking and driving charges and to the licence suspension. But thereafter, the "indefinite suspension without pay" was not a proportionate response, especially since the incident occurred in the employee's personal vehicle and the charges had not yet been convicted.
• If the employer was concerned that the employee had a substance abuse problem, it could have taken less extreme measures, such as random alcohol testing of the plaintiff when using the truck.