Termination for Cause in Employment Law

In most circumstances, employees are terminated without cause and are entitled reasonable notice or pay in lieu of notice. However, when 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.

Some common examples of workplace behaviour that may support a just cause dismissal include:

-Misconduct: Misconduct can include anything that is inconsistent with the employment contract, such as harassment or bullying of other employees or violating health and safety policies with drug or alcohol usage. . Before making a decision to terminate, the employer will consider the impact of the misconduct on business interests and other employees and whether it was intentional or deliberate.

-Theft: In most situations, one act of theft may be enough for an employee to be dismissed with cause and is taken extremely seriously by both employers and the courts.

-Dishonesty: A pattern of dishonesty could lead to dismissal for cause, particularly if:

It’s a pattern of behaviour that’s occurred more than once
It’s done intentionally
It’s about something significant or important to the employer
It has a significant impact on other employees
The employee does not admit to the dishonesty

-Conflicts of Interest: A few examples of conflicts of interest that can justify termination for cause include:

-Competing with an employer
-Utilizing or disclosing confidential information to third parties
-Taking kickbacks
-Using working hours to further one’s own business ventures

-Incompetence: In most cases, general incompetence will not be sufficient to terminate for cause. An employee must demonstrate gross incompetence for a just cause dismissal to follow. A termination for cause due to incompetence requires the employer to have set out clear and objective performance standards to the employee and given a series of warnings to allow the employee a chance to improve their performance before the dismissal.

-Insubordination: Insubordination may include a pattern of behaviours such as refusing to complete a task reasonably requested by the supervisor or directing inappropriate, vulgar or mocking language to the supervisor. The seriousness and the potential impact of the act of insubordination will also be taken into account.

-Conduct Outside the Workplace: An employee’s conduct outside the workplace that is detrimental to the employer’s business operations and/or reputation may be sufficient cause for dismissal. However, this is an area of the law that is evolving rapidly.

The onus is on the employer to prove the existence of just cause. In most cases, the employer will show they followed a progressive discipline approach, such as with a verbal warning for a first offence, progressing to a written warning for a subsequent offence, followed by a suspension before a final termination.

Navigating a termination for cause is complex. If you find yourself in this position, we can help determine how strong your case is and what next steps to take.