The “Park v Costco Dismissal Case” is a recent Ontario Superior Court case that has attracted attention due to its outcome regarding the establishment of cause (also known as “just cause”) for an employee’s termination. In Ontario, it is generally uncommon for employers to successfully establish cause in termination cases, and they often assert cause more frequently than they can prove it in court.
Given that there are two separate and parallel legal frameworks for Ontario employment law, the statutory regime (primarily the Employment Standards Act, 2000 (the “ESA”)) and the common law regime, there are also two different standards for cause.
What are the indicators for the ‘Termination for Cause’?
To establish termination for cause at common law, employers must be able to prove that the employee’s misconduct was so abhorrent as to result in a full breakdown of the employment relationship; this is a very context-dependent analysis. To establish cause under the ESA, an employee must have engaged in “willful misconduct, disobedience or willful neglect of duty that is not trivial and that has not been condoned by the employer”. Ontario courts have confirmed that the ESA definition of cause presents a higher threshold than the common law, so an action that is considered cause at common law may not be considered cause under the ESA.
The Park v Costco dismissal case, 2023 ONSC 1013, presents an unusual situation: the employee, Mr. Park, was terminated for cause due to his deliberate deletion of a website he created for Costco, which was found to be Costco’s property.
Mr. Park was in management and was in an unusually powerful position – many employees cannot just delete a website belonging to their employer by themselves. From his perspective, the website had been underused and no one had expressed interest in it, so he was within his rights to delete it. However, he deleted it after his superiors requested access to it and then deleted it a second time after management found a way to restore it. Mr. Park’s explanation for this second deletion was that he did not realize he had been able to successfully delete it the first time. However, added to the mix was the fact that he wrote an email to his superior that was found to be intentionally misleading, in that he made it seem as though he had deleted the website some time ago, due to underuse, instead of in response to his superior’s email, which was what had actually occurred.
These actions met the test for cause under both the ESA and the common law, because 1) they were clearly deliberate, and 2) they persisted even after the employer had made it clear that they were unacceptable.
This situation provides insight into how easy it can be, in the digital age, to quickly perform destructive acts that can upheave one’s entire career. It can take only a couple of keystrokes to destroy company property, engage in insubordination, and write a misleading email. Mr. Park’s evidence at trial demonstrated that he had acted hastily and emotionally. He saw an email from his superior requesting access to the site as a “revenge tactic”, although what revenge that would be exactly is hard to make out.
What to do in case of ‘termination for Cause’?
This decision has the potential to improve employers’ understanding of what constitutes cause, both at common law and under the ESA. It should do the same for employees, making them aware that clear insubordination and disobedience, after a warning, can justify their dismissal for cause.
At Whitten & Lublin, we understand that facing a termination for cause can be a difficult and stressful experience. That’s why it’s important for employees to know their rights and seek legal advice when necessary. If you or someone you know has been dismissed for cause, we encourage you to contact us for a consultation online or by phone at (647) 946-1278 today. Our experienced employment lawyers can help you understand your legal options and work to ensure that you receive the compensation you deserve.
Author – Carson Healey