‘Just Cause’ Termination Tough to Prove

After two years working as a massage therapist for a very large ski resort, Dominic was terminated without notice.

He brought a claim for pay in lieu of notice before the courts. The employer claimed there was just cause for the termination and so they did not owe Dominic a severance package.

Dominic did not follow proper procedures in clocking in and out of work and was caught eating in the employee cafeteria when he was not working. After receiving two written warnings, Dominic mended his ways and did not breach those policies again.

During a phone conversation with his supervisor, the employer alleged that Dominic was yelling and using profanity.

The supervisor immediately reprimanded him and relayed the employer’s expectations with respect to professional workplace communications. Having received that reprimand, it would appear Dominic did not lose his cool again.

The employer also tried to rely on an incident which took place outside of the workplace.

In that instance, Dominic was at a bar and had hung his bag on a hook under a table which ended up being occupied by three of his colleagues from the ski resort. He approached the table to get his bag.

One of the colleagues later complained that Dominic was drunk and insisted on buying them a round of drinks even though they refused. The colleague also wrote that he tried to keep things polite and jovial with Dominic to avoid any tension. That was the entirety of the incident.

As a last resort, the employer said that it had conducted further investigations which indicated Dominic had on other occasions made colleagues feel uncomfortable. It said, however, that it was not prepared to provide details of those allegations, as they were afraid of what Dominic might do to those employees who complained.

Given that there was no evidence that Dominic might be inclined to do anything at all, the adjudicator rejected that allegation.

No notice or pay in lieu of notice at common law is owed if there is just cause for the termination. “Just cause” means that the employee has done something so heinous, or a series of things so bad, that there has been a fundamental breakdown in the employment relationship and its continuation is untenable.

Clearly this was not the case in Dominic’s situation and he was awarded pay in lieu of notice.

I often receive calls from employees who are concerned about some warning letter or performance improvement plan they have received that they fear is a setup for the employer establishing a just cause termination argument and not giving them a severance package.

I often tell them that unless they have killed somebody or stolen something, there is not going to be just cause for their termination. That is, of course, an exaggeration but it makes an important point. Especially for long-term employees, just cause is extremely hard to establish.

Sometimes, even if there are a number of warning letters, unless they are clear and progressive and refer to behaviour that is very serious, the employer is going to have to pay out a severance package.

I often receive calls from employers who believe there is just cause for an employee’s termination but that is often not the case. Unfortunately, an employee who clearly does not care anymore and is negligent and unproductive cannot be fired for just cause, unless the employer can prove that the negligence is intentional or bordering on it.

Making mistakes is rarely just cause for termination without a package.

Likewise, a lack of productivity will not get the employer to just cause either, unless they can actually show the employee is not working when they should be, or doing other things when they should have been working.

Next, the employer will have to prove that they warned the employee that this continued behaviour, whether it is the gross negligence or the lack of productivity, will lead to a termination if not corrected.

The employer is forced to prove on a balance of probabilities that there is some intentional bad behaviour.

The longer the tenure of an employee, the harder it is to prove just cause and get away with a termination without some sort of severance package.

Judges tend to give employees credit for long service and it increases their entitlement to clear warnings and progressive discipline before a just cause termination can occur.

I am not arguing that this state of the law is fair, just or right. I am simply communicating the state of the law.

The reality is that for every employer who feels frustrated by having to provide a severance package to a very undeserving employee, there is a terminated employee who did not receive a severance package because of a fickle employer who wanted to try to save money.

Somewhere in the middle is justice.

This article was originally published by The Hamilton Spectator.