Written by Irvin Schein and originally published at www.irvinschein.com.

Employees sometimes conduct themselves in an outrageous manner, get fired, and insist that what they did was nowhere even close to just cause for termination. Remarkably, sometimes they succeed and the employer has to pay damages for wrongful dismissal.

Those types of cases make it difficult to advise either side in a wrongful dismissal case as to what a court may or may not consider to be just cause. Since the determination of just cause is essentially a factual one, it is only in rare cases that a definitive opinion can be given. 

In my view, a definitive opinion could have been given to the employee Plaintiff in a recent decision of the Court of Appeal called Dziecielski v. Lighting Dimensions Inc. In that case, the Trial Judge had dealt with a situation in which an employee had an unblemished employment record until the day that he was returning to work in a company vehicle which he was operating without the required authorization at that time. He stopped for lunch and drank four beers in one hour. He then got back into the vehicle, lost control of it, destroyed it, and sustained serious injuries. He subsequently pled guilty to having a blood alcohol reading in excess of the legal limit. 

At trial, the Judge found this to be serious misconduct and notwithstanding his long term employment relationship and unblemished record, concluded that his conduct constituted just cause for termination.

To succeed in an appeal of a case like this, the appellant has to show that the Trial Judge made a “palpable and overriding error”. In this case, the Court of Appeal saw no error at all, let alone a palpable and overriding error.

It is difficult to see how anyone would have thought that a Trial Judge might minimize the seriousness of this type of behaviour simply because of an employee’s long and unblemished employment record. Fortunately, the Court of Appeal has now delivered the message loud and clear. An unblemished record is a factor for the Court to consider in assessing just cause, but it will not override truly serious misconduct.