It is a sad but true reality that employment relationships do not always end on good terms. Employers frequently cite performance issues or some form of misconduct as a reason for dismissing an employee under the “just cause” banner. This only adds to the stress and confusion faced by a recently dismissed employee given the significance that employment has in our lives.
In my experience working with employees, the decision to terminate an employee for just cause is almost always premature or otherwise completely inappropriate. Too often, individuals accept the conclusion of their former employer in an effort to escape an already uncomfortable situation.
What is Just Cause?
So what is just cause dismissal? Just cause, or without cause dismissal as it is also referred to, is when an employer in Ontario or British Columbia is justified in ending the employment relationship without providing any severance to the individual. The dismissed employee may also be ineligible to collect employment insurance benefits and will likely experience difficulty finding other employment.
This is serious blow that can have a lasting effect for an individual. As a result, employers have a heavy burden in establishing that they were justified in dismissing the employee for cause.
Typically only the most serious forms of misconduct such as theft or dishonesty arise to this standard. In dismissing the employee, the employer must not only prove that the misconduct existed but also that termination was the appropriate response. In most cases this is not done or termination of the employee is completely premature.
For example, when an individual is terminated as a result of performance issues the employer has often not taken the necessary steps to document the poor performance or failed to provide the adequate training to correct the issues. Or in the case of theft, it is not uncommon that an employer has not properly investigated the incident or brought forward the allegation to the individual for their side of the story. In either case, the employer would not be able to terminate the employment relationship without paying the appropriate severance and leaving the individuals dignity intact.
In The News
Federally regulated employees must be given cause if fired, Supreme Court rules
Off-Duty Misconduct: Criminal charges alone are not just cause for dismissal
Ex-CBC exec sues broadcaster for wrongful dismissal over Ghomeshi affair
Full Disclosure & Fair Treatment
Dismissal of an employee is too often an emotional process where an employer acts on isolated incidents or fails to fully appreciate the employees side of the story. When an individual is dismissed with cause they absolutely deserve full disclosure of the allegations made against them and fair treatment throughout the whole process – from the investigation stage up to the time of dismissal.
In my experience, this is typically not what happens. In most cases, individuals fired for just cause are terminated for minor or one-off incidents and do not receive and opportunity to fully answer to the reasons for their termination. This leaves the individual without severance and all the other protections provided to employees who lose their jobs. In any situation where an employee is dismissed with cause I would encourage them to seek out an employment lawyer and have the situation surrounding their termination fully assessed. The consequences are simply too dire for the individual. And the difficulty too high for the employer to justify the termination.
All or Nothing?
The main misconception individuals have surrounding termination with cause is that if cause is established then the employee does not receive compensation. That is not true. Only in cases where an employee willfully and consciously participates in poor workplace behavior are they barred from receiving termination pay. For example, an employee may continually have poor performance reviews and on that basis they are terminated for cause.
While the employer may be able to make out just cause, the conduct of the employee was not willful. In that situation, the employee would be entitled to compensation. This is exactly why under all circumstances it is important for an employee to seek out advice whenever an employer terminates employment and alleges just cause.In most cases, individuals are terminated for minor or one-off incidents. Click To Tweet
Stephen Gillman is an associate lawyer with Samfiru Tumarkin’s Labour and Employment Law Practice Group in Toronto, Ontario.