chap 13

• Dismissal with Cause


  Where dismissal with cause is shown, an employer will be relieved of their legal obligation to pay severance to an employee
• Standard of just cause

  • A very high one to meet
  • Progressive discipline often has to be used appropriately in order to meet it
• Procedural fairness


  An employee should be given ample opportunity to respond to merits of all performance allegations before an employer makes a decision to terminate
• Courts are reluctant to find cause given the severe consequences of such a finding, namely that the employee will have no entitlement to severance from their employer (hence, the notion of "near cause" has been rejected)
• Single acts of misconduct that can amount to just cause

  • Theft
  • Sexual harassment
  • Sexual assault
  • Breach of trust where a high level of trust is required
  • Physical assault
  • Death threats
• What acts of misconduct often won't amount to clear cause for an employee's termination

  • Insubordination
  • Performance issues
  • A few unauthorized absences from the workplace
• How to respond to an employer alleging cause in the termination notice

  1. Employer often sets out, in broad strokes, its position on cause in its termination notice

  2. In your plaintiff claim form for an employee, you should address the employer's misconduct allegations against the plaintiff directly

  3. Isolated incident?

  4. Not serious enough?

  5. Failure to use progressive discipline?

  6. Failure to give employee procedural fairness?
• Employee Dishonesty


  • Termination for cause for the dishonesty was not a proportional response given McKinley's long length of service, work history, and character of employment
  • The Plaintiff's act of dishonesty was a single act of misconduct
  • The nature of the dishonesty involved the Plaintiff's medical condition and was not connected to the performance of McKinley's job or to the company's business reputation
• Employer decisions to terminate for dishonesty for theft of company property must be provable
• Fraudulent practices engaged in by an employee (e.g., charging insured persons extra premiums for insurance), even where the employee is acting on a supervisor's instructions, may still constitute just cause for the employee's termination
• The value of the company property stolen need not be significant for just cause to be found (where an employee understands that the property belongs to the company and cannot be taken off the company's premises under any circumstances)
• Single episode of insolence

  • Rarely enough to fire an employee for cause
  • The circumstances of this case were not serious enough to justify a with cause termination
  • The employee and supervisor could restore their relationship
  • The comments were NOT made in front of public or customers
  • The employer should have imposed a "cooling off" period to see if the insolent behaviour continued before deciding to terminate employee
• Sexual harassment by a supervisor

  • Can constitute just cause for a supervisor's termination
  • Bannister breached his fundamental duty as a supervisor to keep the workplace free of sexual harassment and opened the company open to substantial and untold liability
  • Women shouldn't ever have to tolerate sexual harassment based on industry practice; sexual harassment is unacceptable in all workplaces at all times
• Dealing with Employee Absenteeism

  • If an employee's absenteeism arises from a disability, then an employer has a duty to accommodate the absenteeism to the point of undue hardship
  • Even if the employee has a poor attendance record, no disability-related absence can be used against an employee to terminate for cause
  • Where there is no realistic possibility that the employee can return to work on a regular basis, even with medical accommodation, the employer may be able to terminate the employment contract and rely on the common law doctrine of frustration of the employment contract in doing so