In 2024531 Alberta Ltd. o/a Blakkloud Hair Studio v. Hassan, 2024 ABESAB 12, the Alberta Employment Standards Appeal Body (ABESAB) provided valuable guidance on the requirements for just cause termination, particularly emphasizing the importance of clear documentation and timely action by employers.
Facts
The following is a summary of the key facts:
- Brendan Stephen Hassan was employed as a barber by Blakkloud Hair Studio in Banff/Canmore.
- Hassan was terminated on March 20, 2023, allegedly for unprofessional behavior, negative attitude, and frequent outbursts towards management.
- The employer cited a series of incidents from July 2022 to February 2023. In July of 2022, Mr. Hassan was the cause of a negative Google Review left by a customer. The employer also addressed his alleged failure to perform his duties, negative outbursts and temper in November of 2022.
- A critical incident occurred on February 26, 2023, when Hassan allegedly responded to his manager with “F*** you. That’s not my job.” when asked about his failure to perform opening duties.
- After the incident in February, the employer’s general manager issued a “final warning” to Mr. Hassan. The final warning cited issues of Mr. Hassan demonstrating a negative attitude towards staff, being disrespectful towards management, completing duties, and his inability to control his emotions. The General Manager warned Mr. Hassan that if his attitude and work did not change, he would be terminated.
On March 20, the employer’s owner returned from vacation and decided to terminate Mr. Hassan. The termination letter cited Mr. Hassan’s “unprofessional behavior in front of clients” and his “negative attitude and frequent outburst towards management.”
Analysis / Conclusion
The ABESAB, referencing Hertel (commonly called the “Squire’s Pub” decision), outlined two categories of just cause:
- Conduct sufficiently egregious to justify immediate dismissal (e.g., dishonesty, deliberate disobedience).
- Conduct inconsistent with employee duties but not severe enough for immediate dismissal, requiring clear warnings and an opportunity to improve.
The Appeal Body found that while the February 26 incident could potentially have justified immediate termination under the first category, the employer’s decision to issue a final warning instead placed the case in the second category.
Crucially, the ABESAB noted that once an employer chooses to give a final warning, they must provide clear evidence of similar misconduct after the warning to justify termination. In this case, the employer failed to document any specific incidents between February 26 and March 20, offering only general statements that the employee’s behavior hadn’t changed:
[20] However, the events of February 26 were treated by the Appellant as the basis for a final warning. It is always initially within the purview of an employer to determine the degree of discipline to be imposed for any particular act of misconduct. Having chosen to issue a final warning, this case now falls into the second category of Hertel.
[21] Mr. Millette provided a clear written warning to the Respondent that he was at risk of being terminated if his behaviour did not improve. I accept the evidence of Mr. Millette that he presented the Log to the Respondent and that the Respondent refused to sign it and did so in a manner consistent with his behaviour on the morning of February 26.
[22] If the Appellant had provided clear evidence of similar acts of misconduct after February 26 and before March 20, I would have had no hesitation in finding that the Respondent was terminated for just cause. However, there is almost no evidence of the Respondent’s behaviour after February 26. At best, the evidence for the Appellant is a general statement that the Respondent’s behaviour had not changed. This is not sufficient to satisfy the legal onus to prove just cause.
The Appeal Body concluded that while the termination may have been a rational business decision, the legal test for just cause was not met due to the lack of documented misconduct following the final warning. Consequently, the ABESAB confirmed the Employment Standards Officer’s order requiring the employer to pay termination pay.
My Take
This decision underscores the critical importance of proper documentation and timely action in just cause terminations. Employers must be aware that once they choose to give a final warning instead of immediate termination, they set a higher bar for themselves in terms of evidence required to justify a subsequent termination.
The case serves as a reminder that:
- Clear, contemporaneous documentation of employee misconduct is crucial.
- If giving a final warning, employers should closely monitor and document any subsequent incidents.
- The legal test for just cause is distinct from whether a termination is a sound business decision.
- Timing matters – if an employer decides to terminate based on a serious incident, they should act promptly rather than issuing a warning and terminating later without new evidence.
Employers should review their disciplinary procedures and ensure they have robust systems in place for documenting employee misconduct and warnings. This case demonstrates that even when faced with challenging employee behavior, employers must follow proper procedures to protect themselves legally when pursuing a just cause termination.
Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
Michael Hernandez is an employment lawyer at Bow River Law. He is a knowledgeable and skilled lawyer, handling employment law, human rights (discrimination) and labour law matters. Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.
