At common law, the general wrongful dismissal principle is that an employee is entitled to reasonable notice of termination of his or her contract with the employer, or payment in lieu of notice. The exception to the rule occurs when “just cause” exists; the employer is then entitled to dismiss the employee summarily, without any notice, or payment, being required. You are fired; you get nothing, and furthermore, since you were fired for cause (as it is usually shortened to) you cannot get employment insurance benefits. That is pretty harsh, but there are some cases where it is deserved. There is a heavy onus on the employer to prove just cause, and the courts have historically applied this test in a very stringent manner.
The general rule relating to just cause has been stated in our law as follows:
If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence or conduct incompatible with his duties, or prejudicial to the employer’s business, or if he has been guilty of willful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee.
Unless the circumstances are really outrageous, like stealing from the employer, there is a legal duty to warn an employee in writing, before termination for just cause.
Some examples of cases where employers have claimed just cause include allegations of misconduct, insubordination, disobedience, dishonesty, conflict of interest, moral character, intoxication, illness, absence from work, lateness, or workplace conflicts.
Sometimes an employer will cite just cause, purporting to rely on the position that an employee was incompetent or performed his or her duties in a substandard manner. This is an extremely difficult test for employers to meet, at law, but they often try. The employer must prove that the substandard work persisted after warnings were issued to improve. There is also law to the effect that the degree of incompetence of substandard work necessary to justify dismissal may be greater when dealing with a long-term employee. The essential component to an employer’s position in this regard is that it must establish that the substandard performance is the employee’s own fault. If poor performance is caused by the employer’s failure to provide proper training, instructions, support, supervision, failure to provide proper materials and working conditions or the employer’s unreasonable demands, the employee will not be dismissable for just cause. The issue of the degree of training and supervision that an employee received can be a factual dispute and one which the employer would clearly have to prove, on the balance of probabilities, in its favour, to justify dismissing an employee for just cause, for this reason. As well, the employer’s performance standard must be reasonable, fair and non-discriminatory. As such, the employer may also have to prove that it has applied its standards equally to all employees before the dismissal of one employee will be just. Further, the courts seem less likely to uphold dismissals for cause where the employee received mixed messages about his or her performance, or where the performance problems were overlooked by the employer for a long period of time.
Employers often try to allege just cause in order to pay nothing to the fired employee. Most of the time, this tactic fails, if challenged. Don’t assume that your claim is a lost cause, just because you were fired for cause. Call Graeme Fraser to find out, and for representation in obtaining what your former employer is refusing to pay. You will not regret making this call.