Construction workers fired for cause after stripper, party on job site

Video of incident involving stripper at job site emerges

Recent reports in the media have uncovered an incident where several (now former) employees of Nelmar Drywall were caught partying with a stripper on a Mattamy Homes job site in Milton, Ontario. Video of the incident has been circulating around various media and social media outlets. The video depicts several male employees ogling the woman and engaging in varying degrees of sexual touching. Representatives of the company have described the behaviour to CBC News as “inappropriate and completely unacceptable conduct”. None of the individuals in the video are practicing social distancing protocols or seen wearing a mask or face covering.

Employment Lawyer Fiona Martyn was interviewed by Global News about the termination of the contractors who partied on the job site.

Since the video emerged, Nelmar Drywall has denounced the conduct of the individuals involved and has terminated their employment. Given what we see in the video, surely the company would be permitted to terminate these employees for just cause – wouldn’t they? Before we can answer, we need to understand what terminating for “just cause” means exactly.

What is a termination for “just cause”?

When an employee is let go for reasons besides gross misconduct, an employer is generally required to provide an employee that is terminated with reasonable notice of termination or pay in lieu of that reasonable notice, or severance pay. This type of termination is commonly referred to as a “without cause” termination.

When misconduct is involved, the termination may no longer be said to be without cause. If an employee does something that would make it impossible for the employer to continue the employment relationship, the employer might choose to terminate the employee for just cause. An employee dismissed for just cause would generally not receive reasonable notice of termination or severance pay.

Employment Lawyer Lior Samfiru explains how the “termination for cause” designation is often misused by employers, and why severance is still owed in most cases, on Season 5 Episode 4 of the Employment Law Show.

Fortunately for employees, an employer faces a very high hurdle when attempting to establish that it had just cause for termination. The courts have referred to just cause terminations as “the capital punishment crime of employment law”. Not only would an employee terminated for just cause be deprived of a severance package, but they might also be ineligible to collect employment insurance benefits and will likely find it difficult to find a new job. Moreover, being terminated for just cause can be an incredibly humiliating and embarrassing experience. This is why terminations for just cause are reserved only for the most serious situations.

Should the construction workers in the video have been terminated for just cause?

When an employee engages in misconduct, the employer is required to respond with some form of discipline, such as a warning or a suspension, before firing them. If an employee does not appropriately respond to an employer’s progressive discipline over time, then there may come a point where the employer would be justified in terminating the employee for cause.

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Sometimes an employee does something that is so egregious that terminating for cause would be an appropriate response. The workers in the video likely fall into this camp. Not only is the conduct itself a violation of basic ethical and professionalism standards, but the conduct also comes at a time when Ontario is battling the third wave of the COVID-19 pandemic. The actions of the employees show a complete disregard for COVID-19 safety protocols. Both Nelmar Drywall and Mattamy Homes has publicly stated that the conduct violates several of its policies, as well as its code of conduct.

What does this mean for other employees?

While the actions of these former employees appear to be a fairly straightforward example of conduct that would give rise to a termination for just cause, it is not always so cut-and-dried. Many cases concern conduct that falls well below what can be seen in the video in terms of severity. Context and history are also critical components to consider before determining whether a given situation rises to the level of just cause for a given employee. Evidence in each situation must be examined thoroughly.

The reality is, every single case is unique and requires its own analysis. If you find yourself terminated for cause, it is extremely important that you contact an Ontario employment lawyer at Samfiru Tumarkin LLP before deciding whether to simply accept the termination, or to pursue your potential right to a full severance package. Our experienced legal team can review your specific situation, and determine if your employer had the right to fire you without compensation.