Question
Shawn Simoes gained notoriety for being involved in an incident that saw CityNews reporter Shauna Hunt have a sexual slur screamed at her on live television after a Toronto FC football game. Simoes’ friend shouted a crude phrase which is frequently yelled at female television reporters in what has become a vulgar, viral trend. While Simoes did not yell the phrase, Simoes defended his friend’s use of the phrase on live television. Simoes’ comments lost him his network management engineer job at Hydro One which paid $106,510 per year. In the aftermath of the incident, Simoes apologized to both Hunt and Hydro One, volunteered for sensitivity training, and donated to the White Ribbon Campaign — a non-profit that focuses on ending violence against women.
Explain and apply the general legal test for just cause dismissal to determine if there was a valid summary dismissal or if the facts indicate a wrongful dismissal.
Answer
The following facts are based off a New York Times article dealing with true events (the article is available here).
As she made the long journey from New York to South Africa, to visit family during the holidays in 2013, Justine Sacco, 30 years old and the senior director of corporate communications at IAC, began tweeting comments about travel and individuals she saw. She tweeted the following things:
None of Sacco’s 170 Twitter followers replied to her last tweet about Africa which was both racist and offensive. Sacco boarded her flight which was an 11-hour flight. When the plane landed in Cape Town, she turned on her phone. Sacco’s offensive “Africa Tweet” had gone viral and was a number #1 worldwide trend. After issuing a quick apology on twitter, she received a call from IAC which said she was terminated for cause.
- Do you think IAC had grounds to dismiss without providing reasonable notice (i.e. with cause)?
- What factors do you think are the most persuasive for dismissing with cause?
- Would any factors mitigate/lessen against dismissing with cause?
Kirk Van den Boogaard was a project manager for Vancouver Pile Driving, a marine contracting company. He was in a supervisory role, which required him to oversee site safety. He was also required to enforce drug prohibition policies. Boogaard’s employment was terminated without cause and he was offered 4 weeks of severance. Boogaard rejected his employer’s severance offer and sued for wrongful dismissal. Mr. Van den Boogaard had returned his company cellphone after his dismissal. Investigating the device, Vancouver Pile discovered text messages of him soliciting and procuring illegal drugs from various employees under his direct supervision. Relying on this post-termination evidence, VPD maintained that it had just cause to terminate and retracted the severance.
- Assuming the company had found him dealing drugs while on the job, do you think the company would be permitted to terminate with cause? Why or why not?
- On the facts of the case, Van den Boogaard seems to be fired for something that happened after his without cause termination? Do you think this is fair? Should this be lawful? Why or why not?
Pliniussen was a part time lecturer in the school of business at the University of Western Ontario. He taught courses on business management, ethics, and operations management. Sometime in the Spring, Pliniussen lost his very expensive watch which he was fortunate to have insured. He filed an insurance claim and received reimbursement for the lost watch. He then devised a scheme to get additional money from insurance companies. He purchased personal policy insurance policies from two other insurance companies, in each case filing an application form not indicating that the watch was already insured and not indicating that there had been any claim made or paid in the previous short period. About a month or so after taking out the new policies of insurance he filed a false claim once again alleging the loss of the watch, the claim being filed in similar details to the previous one. In July he was contacted by the Police and confessed to them about his fraudulent claims. After finding out about the fraud, the University of Western Ontario immediately dismissed Pliniussen with cause.
- Do you think the University had grounds to dismiss without providing reasonable notice (i.e. with cause)?
- What factors do you think are the most persuasive for dismissing with cause?
Chaba was employed as a “roughneck” on Ensign’s drilling rig. Operating drilling rigs are inherently dangerous places. Ensign made working safely a condition of employment and required all crew members including the Plaintiff to receive and sign for a safety manual. The manual stated that roughnecks were not authorized to operate any equipment and that loaders, fork lifts and cranes must never be operated except when authorized and “the penalty may be immediate dismissal”. One day Chaba’s immediate superior instructed him to use a crowbar and pickaxe to remove a build-up of ice from a three-sided metal tank. Chaba did as instructed but found that after about one half hour that the method of removing the ice was ineffective. On the site there was a front end loader that was used primarily for moving pipe and other equipment. Chaba removed one of the two fork tines and then used the single remaining tine to stab at the ice in an attempt to break it. Chaba said that he had been shown this method by others and had seen a loader used in this fashion on previous occasions. After 30 minutes, he found the fork was being damaged (amount of damage was $750). The Plaintiff worked the following day but at the end of the day was dismissed. The causes sited were: “Using loader, Not following instructions, and Caused equipment damage”.
- Do you think the employer had grounds to dismiss without providing reasonable notice (i.e. with cause)?
- What factors do you think are the most persuasive for dismissing with cause?
- Do any factors mitigate against dismissing with cause?