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.
Have you been terminated “for cause” or do you have an employee that you want to fire with no severance given that worker’s behavior?
Some examples of “just cause” can arguably include:
• Excessive tardiness or absenteeism
• 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 by using the company computer; failing to attend work 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 (but not always) require that progressive warnings clearly identifying the areas of concern and giving the employee an opportunity to correct these areas, are issued.
Those wishing to dismiss a continually unpunctual or underperforming 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.
Dismissing an Employee
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 proven on the balance of probabilities?
2. Does this conduct warrant 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 the worker’s conduct? (eg. suspension, demotion, or reduction in pay for a stated period)
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.
Termination for Cause
What is appropriate discipline for an employee’s misdeeds?
Not every improper or unfortunate action by an employee merits termination. Courts consider a number of factors to determine if a termination is warranted for an employee’s behaviour, including criticizing the boss.
- Whether it’s a first offence:
- While there isn’t a hard and fast rule, the Courts have often determined that it takes at least two incidents to fire an employee for insubordination or insolence and an employee should first be warned. There are, however, cases where an employee was terminated at first instance
- Whether the employee was provoked
- How long the employee had worked for the company:
- The longer, more distinguished the service record, the harder it is to prove cause
- The employee’s position (employees in positions of responsibility are generally expected to demonstrate more discretion than lower level employees)
- Remorse – taking responsibility and expressing regret can diminish the seriousness of an offence and the penalty it carries. Lack of these actions can have the opposite effect
We also take cases in other regions so please call us if your area is not listed.
For a consultation with our employment lawyer please call 905-847-2826.