Licensed Paralegal

Employment Law - Dismissal With Cause

In general, an employer in Canada may be dismissed without notice or pay in lieu of notice only for just cause. All other forms of dismissal require reasonable notice, unless there is a clear and enforceable term in the employment agreement that establishes alternative notices.

 “Just cause” has evolved a particular meaning in common law; it is more than just a good reason to dismiss an employee, it’s whether the employee breached the employment contract so fundamentally that the employer is no longer bound to provide reasonable notice, or pay in lieu.

There is no black and white determination of what constitutes just cause; it is determined on a case-by-case basis. The burden of proof rests on the employer, and the employer must show on a balance of probabilities that the employer breached the agreement in a fundamental fashion. Should the allegation against the employer be of a criminal nature, the standard of proof required will be higher.

Also considered in these cases is the proportionality of the sanction to the conduct from which it rises. A very few things may warrant summary dismissal on only one occurrence (theft or assault, for instance), while many other incidents would best be dealt with in a system of progressive discipline.

What does this mean for employers? It’s better to plan ahead than improvise on the spot; employment agreements should have clearly stated expectations from the employer, and a progressive system of discipline, proportionate to the seriousness of the behavior. The employees should have a copy of the guidelines that they are expected to follow, and an agreement to follow the rules of employment. Employers should document any disciplinary actions, and keep the employees informed of what is expected, and what crosses the line. Penalties and discipline should be contextual, progressive, known and agreed to beforehand.

For employees, it means to know what exactly the employment agreement entails in terms of behavior and discipline. Having access to the rules, knowing the consequences they may face, and thoroughly understanding and adhering to the employment agreement and the laws that protect them are paramount.