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The travails of Toronto Mayor Rob Ford, who has admitted to smoking crack, being intoxicated during Mayoral outings and making death threats in an inebriated state, raise an interesting question: If Mayor Ford was employed as a senior executive in a private company, could he be terminated for cause without any notice or warning? Would such a termination survive a Court challenge?

Terminating an employee for just cause without notice is difficult. In the leading case of McKinley v. B.C. Tel., [2001] 2 S.C.R. 161, the Supreme Court of Canada discussed the issue in the context of dishonesty by an employee. The Court held that a contextual approach was needed where the entire circumstances of the case would be considered. Just cause would be established where the conduct: (a) violates an essential condition of the employment contract; (b) breaches the faith inherent in the work relationship; or (c) is fundamentally inconsistent with the employee’s obligation to the employer. Ultimately, I think the test comes down to asking whether there has been a degree of misconduct such that a breakdown in the employment relationship has occurred. There must be proportionality between the severity of the misconduct and the ultimate sanction of termination.

As applied to the circumstances of Mayor Ford, the factors to consider in favour of termination would be that: (a) he is the most senior executive and the public face of the employer. Higher standards are expected of more senior employees; (b) he gave misleading statements during the course of an investigation. He initially denied smoking crack or being in a video disclosing this conduct, and then admitted to it when faced with evidence that the police had such a video; (c) there has been prejudice to the business of the employer. The conduct of the Mayor has been detrimental to the reputation of the City; (d) the conduct undermines the corporate culture and policies of the employer which, if not properly dealt with, can give rise to cynicism and loss of employee morale; (e) the conduct has come at great cost in police time and investigative resources.

The factors that would be considered in response to a summary dismissal would be: (a) there was no notice or warning. Employers must generally provide employees with the opportunity to remedy misconduct; (b) alcoholism or substance abuse is considered a disability under human rights statutes which an employer must accommodate to the point of undue hardship. This is especially the case where the employee seeks treatment for the condition; (c) has the business of the employer been prejudiced to a sufficient degree that would justify immediate termination.

At the end of the day, a Court faced with a termination of Mayor Ford for cause would look at the matter objectively from the perspective of both parties and would ask the following question: Has there been a degree of misconduct such that the trust and confidence fundamental to the employment relationship no longer exists? I would not like Rob Ford’s chances in answer to such a question.

Image via Flickr courtesy of Shaun Merritt.