Just Cause for Dismissal
Published March 1, 2011
Associated Areas of law
It is an implied term of every employment contract that the employer may terminate employment if there is just cause to do so. To determine whether cause for summary dismissal exists, each case must be examined objectively. It may be that the misconduct by an employee does not justify termination. Whether dismissal is justified depends on the extent of the misconduct. There is no fixed rule defining the degree of misconduct required.
It is impossible to comprehensively list the circumstances which amount to just cause for dismissal. If an employee has been objectively guilty of serious misconduct, habitual neglect of duty, serious incompetence, conduct incompatible with his or her duties, conduct prejudicial to the employer’s business, or wilful disobedience of the employer’s orders in a serious matter, the law recognizes the employer’s right to summarily dismiss an employee. However, the onus is on the employer to prove cause, and this has been described by the Courts as a high burden to discharge. It is only in exceptional circumstances that an employer is justified in summarily dismissing an employee upon the making of a single mistake or of the employee misconducting themselves once. The test in these cases is often whether the alleged misconduct of the employee interfered with the safe and proper conduct of the business.
The particular act which is purported to justify dismissal must be examined in terms of the character of the act itself, the duties of the employee, length of service, and the nature of the possible consequence of the act. While the presence of prejudice or financial loss to the employer is not always obligatory for cause for dismissal to exist, their absence is relevant for establishing that there was not cause.
Modern courts are inclined to consider whether less severe punishment is more appropriate then dismissal. For example, if an employee has been with the employer for a long period of time, it is more likely to be found that the employer should have instead reprimanded or otherwise disciplined the employee. Courts are increasingly looking at the employment record in order to determine whether an employer should have acted less drastically than summarily dismissing the employee.
An employee’s mental state may be relevant. Misconduct, if due to mental illness, will not often be regarded by a Court as constituting cause for dismissal. In these circumstances, granting a medical leave of absence will often be considered a better solution than dismissal. The fact that a long-term employee with a good work record was going through an emotional crisis may militate against finding that there was cause to dismiss.
In Canada, cause for dismissal is now analysed using a contextual approach along with principals of proportionality. It is important to note, however, that an employer may always dismiss an employee if the proper amount of notice is given to the employee.
This article is intended for information purposes only and is not intended to be legal advice. We suggest you contact a legal professional for advice on your particular business and circumstance.