Employers Beware: Asserting Cause for Termination When None Exists May Result in Longer Notice Periods

In August, Justice Belobaba handed down his decision in Johar v. Best Buy Canada Ltd., 2016 ONSC 5287. []. This judgment serves as a stark reminder to employers: if you assert just cause for terminating an employee when no cause exists, you may ultimately end up on the hook for a longer notice period.

The plaintiff, Raj Johar, had been working as a repair technician in Best Buy’s Distribution Centre for ten years when he was fired “for cause” in December 2014.  The employer claimed just cause for termination on the basis that Johar was purchasing large volumes of cell phones from the company’s auction website, which the employer suspected he was reselling for profit.  Upon investigation, the employer also found that the defendant had placed three ads in a community newspaper that offered in-home electronic repair services.

Mr. Johar moved for summary judgment on his claim for wrongful dismissal. The facts were set out in two evidentiary affidavits filed by the parties.  The plaintiff cross-examined on the defendant’s affidavit but the defendant chose not to cross-examine the plaintiff.

Based on this evidence, Justice Belobaba found that the employer failed to establish either a conflict of interest or dishonesty on the evidence before him and, as such, the plaintiff was wrongfully dismissed.  He described firing or terminating an employee for cause as the “capital punishment” of employment law, and ultimately awarded Johar a longer notice period in part because he had been terminated for cause.  Justice Belobaba found that the plaintiff’s age and the fact that he was dismissed or cause and without a letter of reference justified a notice period “at the outer end” of what is reasonable to “reflect the additional challenge of finding replacement employment.”  The plaintiff was awarded 11 months of notice.

This case also serves as a reminder to plaintiff’s counsel that, after the Supreme Court’s decision in Hryniak v. Mauldin [link to previous blog posts about this case], summary judgment or summary adjudication can be a successful way of resolving a wrongful dismissal claim and may be “ a proportionate, more expeditious and less expensive means to achieve a just result.”

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