Just Cause for Dismissal

• Author: Netta Romano
• Pages: 195-227

195

Just Cause for Dismissal

7

Learning Outcomes

After completing this chapter, you will be able to:

• Define “just cause” dismissal.

• Identify the onus of proof and standard of proof

required in just cause terminatio n proceedings.

• Apply the contextual approach in evaluating whether

just cause for dismissal is est ablished.

• Identify specific grounds for just cause dismissal under

the common law.

• Outline the procedure for challenging just cause

dismissal in a unionized workpla ce.

• Identify grounds that cannot constitute just cause for

dismissal.

Introduction ........................ 196

Overview of Just Cause Requirements ... 197

Onus of Proof and Standard of Proof .... 197

Proportionality and the Contextual

Approach ...................... 197

Stating Grounds of Dismissal .......... 199

Condonation ...................... 201

Establishing Just Cause Under the

CommonLaw .................... 201

Dishonesty ........................ 203

Insolence and Insubordination ......... 205

Incompatibility ..................... 207

Off-Duty Conduct ................... 207

Criminal Activity .................... 210

Conflict of Interest .................. 211

Absenteeism and Lateness ............ 212

Sexual Harassment .................. 214

Intoxication ....................... 216

Substance Abuse ................... 218

Incompetence ...................... 219

Misconduct ....................... 220

Frustration ........................ 222

Dismissal in Unionized Workplaces ..... 224

Grounds That Cannot Constitute

Just Cause ...................... 224

Further Reading ..................... 225

Key Terms .......................... 225

Review Questions ................... 225

Discussion Questions ................. 226

© 2022 Emond Montgomery Publications. All Rights Reserved.

196 EMPLOYMENT LAW FOR PARALEGALS

Introduction

Unless otherwise stated, employment contracts are presumed to be for an indenite

period of time and continue until the employer or employee decides to end the rela-

tionship. There is a common misconception that employers must have a reason to let

an employee go. In fact, employers are free to dismiss an employee at any time as long

as the employer complies with statutory and common law requirements. What those

requirements are depends on the nature of the termination—that is, whether it is with

cause or without cause.

Just cause is a term used to describe the situation where an employee has done

something that gives the employer the right to immediately end the employment con-

tract. If an employer believes it has cause to dismiss an employee, there is no obligation

to provide advance notice or pay in lieu of notice. The essential legal question is whether

an employee breached express or implied terms in the employment contract in such a

fundamental way that the foundation of trust has been irreparably damaged or strikes

“at the very heart of the employment relationship”

1 such that the employer is no longer

bound by the common law obligation to provide reasonable notice of termination or

pay in lieu of reasonable notice. Recall the implied terms in every contract of employ-

ment discussed in Chapter 4, such as the duty of good faith and honesty and the duty

not to harm the employer’s business interests. Violations of those implied terms may be

grounds for dismissal for cause. When an employer dismisses an employee for cause,

the employment contract is at an end, and the employer has no further legal obligation

to the employee.

Termination without cause, on the other hand, requires reasonable notice (that is,

the employee is told that on a specic future date their employment will end; this is

commonly called “working notice”) or pay in lieu of notice (that is, the employee is

told to leave and is given the wages or salary that would have been earned during the

“reasonable notice” period). If there is a clearly expressed and enforceable term in an

employment contract that establishes an alternative notice requirement that meets

the minimum statutory requirements in the Employment Standards Act, 2000,

2 as

discussed in Chapter 2, that agreed-upon notice period will apply. If not, courts must

determine “reasonable notice,” which is very different from the minimum notice

periods in the ESA. Reasonable notice at common law is analyzed in Chapter 8. This

chapter focuses on just cause termination.

As the existence of just cause is decided on a case-by- case basis, whether an

employee’s conduct supports such a nding will ultimately be determined by the court

or by a labour arbitrator in a unionized workplace. As always, legal research must be

conducted to determine how courts have dealt with similar situations. While the legal

principles applied are consistent, the application of those principles will lead to differ-

ent outcomes based on the particular circumstances of each matter, as evidenced by

the voluminous case law on termination.

1 Fernandes v Peel Edu cational & Tutorial Services Limited ( Mississauga Private School ), 2016 ONCA 468 at p ara 126.

2 SO 2000, c 41 [ESA].

just cause

very serious employee

misconduct or incompetence

that warrants dismissal

without notice

© 2022 Emond Montgomery Publications. All Rights Reserved.

CHAPTER 7 JUST CAUSE FOR DISMISSAL 197

Overview of Just Cause Requirements

Before turning specically to behaviour that permits an employer to dismiss an employee

without notice, we will review some overarching concepts that apply in all situations.

Onus of Proof and Standard of Proof

Because the consequence of a nding of just cause—dismissal without notice or pay in

lieu of notice—is severe, courts are reluctant to reach this result. The onus of proof is

on an employer to show, on a balance of probabilities, that an employee breached an

employment contract to such an extent that it is no longer possible to save the relation-

ship. Just cause is an “all or nothing” proposition. In the past, a few courts have accepted

the notion that misconduct or incompetence that falls short of just cause may reduce

the length of the required notice period. However, the Supreme Court of Canada has

rejected any consideration of near cause in employment law.

3 If an employee’s miscon-

duct or incompetence fails to meet the threshold for establishing just cause, an employer

is obliged to provide reasonable notice or pay in lieu under the common law. There is

no reduction in the notice period owed to that employee.

Proportionality and the Contextual Approach

Courts have generally recognized the unequal bargaining relationship that exists

between most employers and employees, especially at the time of dismissal, and they

have adopted several ways to protect employees. In McKinley v BC Tel,

4 the Supreme

Court of Canada stated that when considering whether misconduct on the part of an

employee justies immediate dismissal without notice, courts must apply a propor-

tional and contextual approach—that is, whether the behaviour was such that the

employment relationship could no longer continue in light of the surrounding circum-

stances including the employee’s length of service, their performance and disciplinary

history, and any mitigating circumstances, such as personal factors that inuenced the

employee’s conduct or performance. There are a few acts of misconduct—such as

theft, assault, breach of trust where a high level of trust is required, or sexual harass-

ment—that may warrant dismissal for cause even if they occur only once because they

go to the heart of or are incompatible with an ongoing employment relationship.

3 Dowling v Halifax (City), [1998] 1 SCR 22, 1998 CanLII 834.

4 2001 SCC 38.

onus of proof

burden or obligation

on a party to est ablish

an allegation of fact

near cause

the principle, now rejected by

the courts, that mis conduct

that falls short of esta blishing

just cause may be used

to reduce the amount of

reasonable notice owing

EMPLOYEE’S DISHONESTY MUST BE ASSESSED IN CONTEXT

McKinley v BC Tel, 2001 SCC 38

Facts

McKinley occupied a senior financial position with the

employer when he began suffering from high blood

pressure. In mid-June 1994, he took a leave of absence.

He told his supervisor that he wanted to return to work

in a position that involved less responsibility than the

position he left. In August 1994, he was dismissed. The

employer offered him a separation package that he

(Continued on next page.)

CASE

in

POINT

© 2022 Emond Montgomery Publications. All Rights Reserved.