Fired For cause
Every employer has a right to end an employment relationship immediately for “just cause”. That means that if an employer has caught an employee in an egregious act with no justification it is within its rights to dismiss that employee immediately. Some examples of “just cause” include:
Theft
Excessive tardiness or absenteeism
Dishonesty
Insubordination
Incompetence
Conflict of Interest
Substance abuse
Violence or harassment in the workplace
Immoral or criminal conduct – even if it is in the employee’s private life.
The Courts impose a high hurdle, however, and require stringent evidence to prove “cause”. In a recent case the Court found that an employee’s actions in accessing pornography using the company computer; failing to attend diligently and work as part of a “team”; habitual lateness; use of his company computer to work on personal file; and failure to follow directions, even considered cumulatively, when balanced against the employee’s 11 years of otherwise commendable service, did not constitute just cause for termination without notice. [Plotogea v Heartland Appliances Inc.]
Employers have a duty to provide an employee with an opportunity and the means required to improve their performance, if they intend to dismiss them “for cause”. To show that an employee is incompetent and worthy of such dismissal, the Courts often require that progressive warnings clearly identifying the areas of concern and giving the employee an opportunity to correct these areas, are issued.
Employers
Those wishing to dismiss a continually unpunctual or under performing employee should create a paper trail documenting all allegations and concerns. If there is a performance appraisal, clearly outline the concerns and areas that require improvement.
When dismissing an employee for “just cause” be aware that the Court will apply a 2 part test in determining whether it was justified:
1. Was the conduct complained of as the basis for dismissal established on the balance of probabilities?
2. Was the nature and degree of such conduct such that it warrants dismissal? The seriousness of the conduct alleged must be carefully balanced with all of the circumstances in the case. [Did it violate an essential condition of the employment contract and constitute a breach of faith inherent to the work relationship? Was such conduct fundamentally or directly inconsistent with the employee's obligations to his employer?]
In essence you must consider if termination without notice is proportionate to the employee’s misconduct and negligence. Is there some other approach, short of termination without notice, more proportionate to his negligence available? (eg. suspension, demotion, or reduction in pay for a stated period)
Employees
If you feel a performance appraisal or “warning letter” is unfair or unjustified, it may be important to respond in writing outlining those areas that you feel your employer overlooked or misunderstood. If you know that there is a valid concern, ask for sufficient time and the necessary tools to correct the problem. But ensure that the tone of any response is professional. You may be wise to have an employment lawyer read it first.
