Termination For Cause Lawyers Calgary
In most circumstances, employees are terminated without cause and are entitled reasonable notice or pay in lieu of notice ( Learn more about wrongful dismissal ). However, where an employee commits an act of serious misconduct, an employer can terminate an employee without providing notice or pay in lieu. This is referred to as termination for cause.
Termination for cause arises in exceptional circumstances and each situation may present with different factors. The sufficiency of the justification for dismissal for cause without notice depends upon the extent of the misconduct. There is no fixed rule or test for assessing cause. Conduct inconsistent with the fulfilment of the express or implied conditions of employment will justify dismissal.
In exceptional circumstances, a single act of misconduct may justify termination for cause if it results in serious detriment to the employer. More often, just cause arises after numerous incidents of misconduct, which may not justify dismissal without notice when considered individually, but their cumulative effect allows the employer to terminate the employee without notice.
Some common examples of workplace behaviour that may support a just cause dismissal include:
Misconduct is broad category of offences ranging from harassment or bullying of other employees, health and safety breaches to drug to alcohol usage. “Misconduct” essentially encompasses anything that is inconsistent with the fulfillment of the employment contract. Before making a decision to terminate, the employer will consider whether the misconduct was willful or not, whether it was conduct going to the root of the employment relationship as opposed to something they were simply unhappy about, as well as the impact of the misconduct on business interests and other employees.
In most situations, one act of theft may be enough for an employee to be dismissed with cause. Theft and fraud strike at the core of an employment contract and is taken extremely seriously by both employers and the courts.
In contrast to theft, in most cases, an isolated act of dishonesty will not be sufficient for a cause dismissal however, a pattern of conduct may lead to dismissal for cause. A contextual analysis will apply to the investigation into the dishonesty. This analysis will include whether the dishonesty was intentional, how significant or important the matter lied about was to the employer, the impact on other employees and whether the employee admitted to the dishonesty or not.
Conflicts of Interest
Competing with an employer, utilizing or disclosing confidential information to third parties, taking kickbacks, using working hours to further one’s own business ventures are a few examples of conflicts of interest that can justify a termination for cause.
In most cases, general incompetence will not be sufficient to terminate for cause. An employee must exhibit gross incompetence for a just cause dismissal to follow. Often the issue with a for cause dismissal for incompetence is that an employer may not have set out clear and objective performance standards to the employee. A for- cause dismissal for any type of incompetence will likely have to be preceded by a series of warnings to allow the employee a chance to improve their performance.
The courts will apply a contextual, fact-specific approach to the issue of termination for cause for insubordination. Rarely will a single act of insubordination be sufficient to ground a case for termination with cause, rather, the usual case is a pattern of insubordination. The seriousness and the potential impact of the act of insubordination will also be taken into account. For example, insubordination that potentially endangered other employees would be considered differently than where an employee used profanity directed at their supervisor and refused to do a task.
Conduct Outside the Workplace
An employee’s conduct outside their place of work and whether such misconduct can ground a case for termination with cause in the workplace is dynamic area of the law. Generally, if the misconduct is detrimental to the employer’s economic interests and business, it may be sufficient cause for dismissal. Otherwise, if the conduct is completely unrelated to the employment relationship, it likely is not cause.
Responses by the employer to the same conduct experienced in the past from other employees will be considered in assessing the seriousness of the misconduct and the appropriate response.
The onus is on the employer to prove the existence of just cause. To that end, in most cases of termination for just cause, the employer should have proceeded prior to the termination with a progressive discipline approach. Most often this takes the form of a verbal warning for a first offence, progressing to a written warning for a subsequent offence, followed by a suspension before a final termination.
The determination of what constitutes just cause of dismissal is highly fact specific. A lawyer can assist in determining the strength of the case of an employee dismissed for cause.
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