For Cause Dismissals: What Behaviour Will Get You Fired Without Severance Pay?

If you are an employer who has ever had to fire someone, or if you are someone who has recently been let go from your employment, you may be wondering what your rights and responsibilities are when it comes to severance pay. In this article, we will discuss “for cause” dismissals and what that means for the dismissed employee.

What is just cause?

“Just cause” for termination is employee misconduct that strikes at the root of the employee-employer relationship. Essentially it is conduct that is so severe that it breaks the trust relationship to the point where employment can no longer continue.

What is the typical outcome of a just cause termination for an employee?

When an employee is terminated without just cause, they are typically entitled to notice which can be either working notice or severance pay or a combination of both and the employee will be eligible to collect Employment Insurance. When however, an employee is terminated with just cause, they are not entitled to notice or severance, nor will they be eligible to collect EI.

What behaviour can get an employee fired for just cause?

While there is no specific list of bad behaviours that can get an employee terminated for just cause, some examples include:

  • Insubordination
  • Incompetence
  • Criminal misconduct including theft
  • Violence in the workplace
  • Workplace bullying
  • Sexual harassment

In all but the most extreme cases, an employee is entitled to warnings and a reasonable opportunity to improve before the employer can prove just cause.  However, some behaviour is so unacceptable on any standard that the employer will be entitled to dismiss after a single incident. 

Furthermore, just because an employer alleges just cause, it does not mean that there is just cause. That ultimately is a decision the court must make.

Whose responsibility is it to prove a just cause termination?

The onus for proving just cause is on the employer. If the employee takes the employer to court, it will be up to the employer to provide evidence that there was in fact just cause for the termination. Generally, the courts will take a contextual approach when determining if there was just cause in the eyes of the law.

This means that the courts will look at all of the circumstances before coming to a conclusion.

Factors to consider

When determining just cause, courts have noted the following:

  • It is more difficult to prove just cause against a long-term employee than a short-term employee.
  • It is unlikely an employee can be fired for just cause for not being able to competently perform a duty that is outside their area of expertise.
  • If an employee engages in misconduct and tries to cover it up, courts may determine that there is just cause for termination.
  • Employees in certain industries (e.g. banking) are often held to a higher standard.
  • If there has been previous disciplinary action taken against an employee, that would be taken into account by the court to determine if there was just cause.

What should an employee facing allegations of just cause do?

The first thing an employee facing such allegations should do is consult with an employment lawyer. This is because if they are terminated for just cause, they will not be entitled to severance, nor will they be able to collect EI. Furthermore, the employee could also face damage to their reputation, which may make it difficult for them to find another job. 

Upon consulting with an employment lawyer, the employee may find that they can file a wrongful dismissal suit, in which case it is the employer who will be responsible for proving just cause.

If you want to file an allegation of just cause against an employee, what should you do?

An employer that wishes to terminate an employee for just cause should definitely talk to an employment lawyer before taking any action.

Employers wishing to build up a case against an employee for just cause need to be very careful, as the onus for proving just cause will be on them. Therefore, if the employer intends to give an employee a warning that repeated behaviour or failure to improve performance will lead to a dismissal for just cause, the employer needs to be very specific in the warning and the statement of expectations. If the employer believes that there was a single incident that justifies a termination for just cause the employer must ensure that they have proper documentation to support their claim.  This will often include the results of an investigation either by an internal or external investigator.

If the employee is given a chance to improve, they must know what is expected of them. The employer should also document the goalposts that are put in place for that employee.

Contact Kent Employment Law today

Whether you are an employee facing just cause allegations or an employer looking to terminate for just cause, it is extremely important that you seek out legal advice. To speak to an employment lawyer, contact us today.

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