Employee Dismissals and Wrongful Dismissal

Just Cause

At common law, “just cause” is generally defined to require conduct by the employee that is inconsistent with the fulfillment of the express or implied conditions of service (Denham v Patrick (1910), 20 OLR 347 (Div Ct)). Just cause generally involves conduct which is inconsistent with continuation of the employment relationship, or which constitutes a fundamental breach going to the root of the employment contract. Whether “just cause” exists in any particular case is a question of fact, to be determined by a judge on a case by case basis.

If an employee is guilty of serious misconduct which goes to the heart of the employment relationship, the employer may dismiss the employee for just case. If an employer has just cause to dismiss an employee and is able to demonstrate this to a court’s satisfaction, it is not required to provide the employee with common law notice of termination or common law pay in lieu of notice.

Just cause is often very difficult (but not impossible) for an employer to prove.  Experienced counsel should be consulted prior to moving forward with a dismissal based on just cause.  Where there is a reasonable chance that the employer would be able to establish just cause in court, an experienced employment lawyer can help individuals to determine whether if they may have a defence to just cause.

If the employer is unable to establish just cause in court, then the dismissal is without cause. This requires that the employer give the employee reasonable notice of termination, pay in lieu of such notice, or a combination of notice and pay.

Examples of “just cause” can include:

i) Insubordination/ Disobedience – this must be of a level that is incompatible with continuation of the employment relationship.

ii) Poor Employee Performance – this must involve incompetence that is the fault of the employee.  The onus is on the employer to establish incompetence, and that certain steps were followed prior to discharging the employee. Typically, one isolated example of failure does not warrant dismissal. An employer will generally be required to establish that:

a) reasonable standards of behaviour and performance had been set and clearly communicated to the employee;

b) the employee was notified when he or she did not meet those standards;

c) the employee received training and was allowed adequate time to meet those standards; and

d) the possible repercussions of failing to meet those standards were clearly communicated to the employee; and

e) the employee appreciated the significance of the warning.

Incompetence as a basis for dismissal must also be assessed in light of the Human Rights Codeand the bona fide occupational requirement (“BFOR”) test, as considered in British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union (BCGSEU), [1999] 3 SCR 3 (known as the “Meiorin case”). Performance standards  established by employers are not always upheld in court as being sufficient to meet the “bona fide occupational requirement” (BFORtest, and may not be a sufficient basis upon which to justify a dismissal. The employer must be able to demonstrate a “neglect of duties” in order to establish just cause on this ground.

iii) Dishonesty – The employer has the onus of establishing that the employee intentionally and deceitfully engaged in misconduct. If the employer is able to demonstrate this, it may constitute just cause for dismissal, especially if it shows that the employee is of an untrustworthy character or is seriously prejudicial to the employer’s interests or reputation. An employer who has alleged just cause, but then is unable to prove it, may open the door to an award of punitive damages.

In McKinley v. BC Tel, [2001] 2 SCR 161, the Supreme Court of Canada used a contextual approach to assess dishonesty and stated that the sanction imposed by an employer must be proportionate to the severity of the dishonesty involved.

iv) Intoxication

v) Chronic Absenteeism and Lateness

vi) Conflict of Interest

vii) Off-Duty Conduct

viii) Prolonged Illness

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