The Last Straw Doctrine

Toronto Labour Lawyer Brian Bell: A recent decision out of the UK says that employers now have a level playing field with employees when it comes to "the last straw."

The High Court has approved an employer’s reliance on the “last straw” doctrine to justify the summary dismissal of an employee. After a heavy drinking session, the employee overslept and missed an important meeting. He was dismissed for gross misconduct and the employer successfully defended his claim for wrongful dismissal. It has been established for a while that an employee can rely on a series of acts by the employer which cumulatively amount to a sufficiently serious breach to entitle him or her to resign because the employer has repudiated the contract of employment (the “last straw” doctrine). The Court accepted that an employer could also rely on the last straw doctrine to justify dismissal of an employee without notice. The employee had shown by his behaviour that he no longer intended to be bound by his contract of employment.

There has been some of this in Canada, but the question has always been how far back is “cumulative," and what constitutes bad behaviour? For example, does an absenteeism issue in general form part of a performance disciplinary process? The "in general" concept matters, because a lot of union environments will suggest that discipline and termination for cause must be of the same issue to be "cumulative."

I know of a firefighter who was finally terminated for absenteeism, and it was upheld for absenteeism for sickness, but it took about twelve years to get the arbitration system to support the decision to terminate for cause.