Employment Law for Business and Human Resources Professional, 4e

CHAPTER 13
Dismissal With Cause

Copyright © 2019 Emond Montgomery Publications. All rights reserved.

 2

Overview of Just Cause Requirements

• Under the common law, an employee may be dismissed for just cause without
advance notice or pay in lieu of notice
• Just cause means that an employee breached the contract in such a
fundamental way that the employer is no longer bound by its obligations of
notice or pay
• Near cause—misconduct or incompetence that falls short of just cause—will
not permit a reduction in the notice period or pay in lieu of notice
• Sanctions must be proportional to the act of misconduct

• Some acts of misconduct, such as theft or assault, may warrant dismissal

for cause even if they only occur once
• Most types of misconduct must occur more than once to constitute just cause

Copyright © 2019 Emond Montgomery Publications. All rights reserved.

 3

Overview of Just Cause Requirements

• Note that unpaid suspensions usually constitute
constructive dismissal, although this area of the law is
evolving.
• The contextual approach to determining just cause involves
the court considering the nature and seriousness of an
alleged offence in the context of the overall employment
relationship.

Copyright © 2019 Emond Montgomery Publications. All rights reserved.

 4

Overview of Just Cause Requirements

• Following rules of procedural fairness improves an employer’s

chances of demonstrating just cause
• The investigator must be impartial

• Employees should be given an opportunity to respond to

allegations
• An allegation should be investigated promptly

• Employers should avoid making ultimatums

Copyright © 2019 Emond Montgomery Publications. All rights reserved.

 5

Overview of Just Cause Requirements

• If an allegation of misconduct is substantiated, the employer should ensure that the
sanction is proportionate to the misconduct within the overall context of the employment
relationship:

• Consider whether the misconduct was deliberate or a momentary error in judgment

• Assess the misconduct in the context of the employee’s position, length of service,
performance and disciplinary record, and previous conduct

• Consider extenuating circumstances that may have prompted the incident

• Consider the employee’s response to the allegations

• A court may uphold a dismissal for just cause based on the fact that the employee lied or
tried to conceal material information during the investigation

• An employer must be careful not to condone misconduct that it intends to rely on as just
cause for dismissal

Copyright © 2019 Emond Montgomery Publications. All rights reserved.

 6

Establishing Just Cause Under the Common

Law
• Employers should not condone misconduct that they intend to rely on as just cause for
termination. Failing to respond within a reasonable time to misconduct or poor
performance may constitute condonation.

• Dishonesty, which can include fraud, kickbacks, and theft, undermines the trust between
an employee and employer

• However, dishonesty that does not go to the root of the employment relationship does
not constitute just cause for dismissal

• An employer should be able to prove an allegation of dishonesty when dismissing an

employee for cause

• When an allegation cannot be proven, it is safest to provide a reasonable separation

package

• An employer’s policies should clearly identify violations and state that they will be cause
for dismissal
Copyright © 2019 Emond Montgomery Publications. All rights reserved.
 7

Establishing Just Cause Under the Common

Law
• Usually, for insubordination or insolent behaviour to constitute just cause, an
employer must show a pattern of employee behaviour
• A single act rarely constitutes just cause

• Incompatibility with workplace culture is generally too vague to constitute just

cause
• Conduct that takes place outside the workplace does not generally constitute
just cause unless it harms the employer’s business or reputation, renders the
employee unable to do their job, leads other employees to refuse to work with
the employee in question, breaches the Criminal Code in a serious way, or
makes it difficult for the employer to manage its workforce
• Conflicts of interest may justify dismissal for cause if they harm an employer’s
interests
Copyright © 2019 Emond Montgomery Publications. All rights reserved.
 8

Establishing Just Cause Under the Common

Law
• Disobedience will not constitute just cause for dismissal unless it
is deliberate and causes substantial harm
• An isolated incident of poor judgment or misunderstanding is
often best dealt with using progressive discipline
• Culpable absenteeism: a single incident of culpable absenteeism
rarely justifies dismissal
• Innocent absenteeism: if any part of an employee’s absences
results from a disability, an employer must accommodate
employees up to the point of undue hardship

Copyright © 2019 Emond Montgomery Publications. All rights reserved.

 9

Establishing Just Cause Under the Common

Law

• Sexual harassment, particularly serious cases and

cases involving supervisors, may constitute just
cause in the absence of progressive discipline
• Psychological harassment (bullying) may
constitute just cause, particularly where the
bullying employee is a person in authority or the
misconduct is ongoing despite attempts by the
employer to change the behaviour
Copyright © 2019 Emond Montgomery Publications. All rights reserved.
 10

Establishing Just Cause Under the Common

Law
• A single incident of intoxication may constitute just cause when the
consequences are especially serious
• However, a single violation of a policy that prohibits the use of alcohol or
drugs on the job or at lunch by an employee who is not in a safety-sensitive
position will probably not be considered just cause
• Substance abuse is considered to be a disability and thus is a prohibited ground
of discrimination and cannot alone constitute just cause
• Where an employee suffers from an addiction and that addiction is causally
connected to other misconduct (e.g., theft of narcotics by a drug-addicted
nurse), a finding of just cause may not be sufficient to justify dismissal

Copyright © 2019 Emond Montgomery Publications. All rights reserved.

 11

Establishing Just Cause Under the Common

Law
• As with other disabilities, an employer must accommodate
an employee with a substance abuse problem up to the
point of undue hardship. If rehabilitation efforts have been
unsuccessful and the employee’s dependency adversely
affects the workplace, after a certain point, the problem
may constitute just cause or frustration of contract and
justify dismissal.

Copyright © 2019 Emond Montgomery Publications. All rights reserved.

 12

Establishing Just Cause Under the Common

Law
• While incompetence is one of the most common reasons for dismissing an employee, it is
also one of the most difficult to prove

• An employee may be dismissed for cause on the basis of a single instance of

incompetence in only the most extreme of circumstances

• The standard for dismissing an employee on probation is lower than the normal standard
of requiring just cause

• Probationary employees must be clearly advised of the standards against which they
are being assessed and given a fair opportunity to demonstrate their suitability

• To successfully prove incompetence, an employer must show that an employee has

fallen below an objectively determined level of performance and that the problem lies
with the employee, not with other factors, such as lack of adequate training.

Copyright © 2019 Emond Montgomery Publications. All rights reserved.

 13

Grounds That Cannot Constitute Just

Cause
• An employer may not dismiss an employee for asserting her statutory rights,
including:
• Human rights (Human Rights Code)

• Pregnancy or parental leave (Employment Standards Act, 2000)

• Refusal of unsafe work (Occupational Health and Safety Act)

• Absence from work for a work-related cause (Workplace Safety and

Insurance Act, 1997)
• Pay equity (Pay Equity Act)

• Union-related activity (Labour Relations Act, 1995)

• The remedy for dismissing an employee for asserting her rights under these
statutes may be monetary damages, reinstatement, or both
Copyright © 2019 Emond Montgomery Publications. All rights reserved.