Employer Cannot Change a No Cause Dismissal into Just Cause Dismissal After Being Sued:

In Alayew v The Council for the Advancement of African Canadians in Alberta, 2023 ABKB 113 Justice Lema started off his judgement in the following fashion :

I. Introduction
[1] Can a without-cause dismissal be recharacterized later as for cause when the material circumstances were known to the employer before the dismissal?
[2] The answer is no.

I wish all judgements could so clear.

The relevant factors in this case were as follows:

1. The Defendants’ Board of Directors in their resolution terminating the Plaintiff ( who was the Executive Director ) said the termination was without cause.
2. The termination letter said it was without cause.
3. They paid him his minimum entitlement under the ESA which would not be payable if the was terminated was for just cause.
4. They never alleged any misconduct.

But here is the real backstory.

* A bunch of employees filed a harassment complaint against the Plaintiff .
* The Defendant hired an ind├ępendant investigator to conduct a harassment investigation.
*The investigator did its job, interviewed the relevant parties and issued an interim report which said that the Plaintiff did not harass anyone.
* Having knowledge of this report, but apparently not relying on the report, the Board then made the decision to terminate and not allege cause .
* When the final report came out ( after the termination ) it confirmed the investigator’s conclusion that no harassment had occurred.
*The Defendant offered no evidence about why they decided to terminate the employment of the Plaintiff.
* The Defendant did not acquire any new information after the dismissal that they didn’t already have before the dismissal .
* In other words, they just thought they could change their mind, like changing your clothes.
* One of the the Board members was a lawyer but he stated that he did not know employment law. He advised the Board to hire an employment lawyer before the termination. The Board did eventually hire an employment lawyer( who presumably told them they did have just cause) but only after the actual termination.

My Comments:

This reminds me of when I practised as an advocate. Every single time one of my plaintiff clients was under investigation for alleged harassment , the result was always a dismissal. If the investigation found that the plaintiff was at fault the employer alleged just cause. If the finding of the investigator was no harassment the employer would say that they lost confidence in the employee and they would terminate without just cause.

Either way the employee lost his or her job.

If you like a copy of this case email me at barry@barryfisher.ca

For my mediation availability, go to www.barryfisher.ca