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By MacLeod Law Firm, January 21, 2013 2:37 pm

“Just cause” is a legal term that means a non-union employer is justified in terminating an employee without ANY notice of termination at common law.

The courts decide whether or not just cause exists unless the employee has agree that certain misconduct constitutes just cause in an employment contract.

The onus is on an employer to prove it had just cause in terminating the employee.

What must an employer prove?

When deciding whether “just cause” exists, the Ontario Court of Appeal has stated:

” …the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanction imposed for misconduct is to be proportional – dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the
 employment relationship.”

Three examples where an Employer has proven Just Cause

1. Driving an employer’s vehicle while drunk. After 32 years of service, an employee was returning to the workplace from a customer visit.  While driving, the employee was responsible for a serious accident which destroyed the vehicle and left him with life threatening injuries. Although finding just cause, the court stated: “ Normally, a single and isolated incident will not be sufficient cause to dismiss a long service employee, particularly one with a clean disciplinary and performance record.” And, “Intoxication at work does not automatically justify termination.”

2. Falsifying and submitting medical benefits claims forms,  lying to the employer’s group insurer, and failing to forthrightly admit this misconduct when asked during an employer investigation. At the time of her termination, this first level manager had been employed with the employer for 19 years.

3. Engaging in personal and sexual harassment of a co-worker. The employee, a lawyer with 13 years service and no prior discipline, persisted in pushing a romantic relationship with a female co-worker after she repeatedly told him that she was not interested. Harassment included the employee communicating with the co-worker’s colleagues and superiors and his attempt to have her employment terminated.

To discuss what kind of evidence is needed to prove just cause in a particular case, please email us at inquiry@dougmacleod.com or call us at 1-888-640-1728.

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By MacLeod Law Firm, June 17, 2012 6:45 pm

Just Cause For Termination

Just Cause is a legal term that means an employer is justified in terminating an employee and not providing the employee with any notice of termination at common law. Generally, the courts decide what constitutes just cause.

The Core Question

When deciding whether Just Cause exists, the courts in Ontario have stated:

…the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanction imposed for misconduct is to be proportional – dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the
employment relationship.

The Three-Step Approach

The Ontario courts have outlined a three-step approach for determining whether misconduct strikes at the heart of the employment relationship.

The first step is determining the nature and extent of the misconduct.

The second step involves considering the surrounding circumstances for both
the employer and the employee.

The third step is determining whether dismissal is warranted as a proportional response; this involves determining whether the misconduct is sufficiently serious so as to give rise to a breakdown in the employment relationship.

Lessons to be learned:

1. It is generally difficult to prove “just cause”. You can limit your organization’s termination pay obligations by including a termination clause in your employment contract.
2. In some cases you can prove “just cause” but your organization may still owe the person notice of termination, and severance pay under the Employment Standards Act.
3.  You can stipulate in your employment contract that specific misconduct (i.e theft) is deemed to be just cause. This is called a specific penalty clause.If you are thinking about terminating an employee and want to discuss your organization’s potential legal liability, or you want to amend your employment contract to enhance your management rights, please email us at inquiry@dougmacleod.com or call us at 1-888-640-1728.

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By MacLeod Law Firm, June 10, 2012 9:54 pm

Employee Termination: 5 Questions to Ask Yourself

1.Are you claiming that your organization has just cause to terminate the employee?

If so, and you can prove just cause then your organization is generally not required to provide the employee with any notice of termination at common law. Unless the employee willfully misconducted herself, however, your organization may still be required to provide the employee with the minimum employee termination notice he/she is entitled to under employment standards legislation.

If not, you must provide the employee with notice of termination or termination pay in lieu of such notice.

2. Can you provide the employee with working notice of termination?

In the vast majority of cases, employers do not provide notice of termination. In some cases, the reason is because there is a concern about the impact on employee moral. In other cases, there are security concerns if the employee has access to sensitive information on the company computer network.

In some cases, however, working notice is a viable option. For example, this option is sometimes utilized when a business is being sold or closed. It is also used in connection with the termination of professionals like accountants and lawyers.

3. If there is no just cause for termination, has your organization included a termination clause in your standard employment contract?

If so, and this clause provides the employee with at least as much notice as the minimum notice required by statute law then this clause will generally be enforced.

If not, you are generally required to provide “reasonable notice” of termination.

We strongly recommend that every employment contract include a termination clause.

4. Should your organization provide a reference letter and/or outplacement counseling to a terminated employee?

Unless just cause is being alleged, we believe it is generally a good idea to provide a reference letter to a terminated employee.

We suggest deciding whether to offer outplacement counseling on a case-by-case basis. There are a number of factors to take into account when making this decision.

5. Should you require an employee to sign a release before paying out any termination pay?

Usually, we suggest that an employer require an employee sign a release before providing the employee with any termination pay in excess of the employee’s entitlement under any employment contract or the minimum notice requirements set out under employment standards legislation.

If you are thinking of terminating an employee and have any questions, please contact us at inquiry@macleodlawfirm.ca or
call us at 1-888-640-1728 at your convenience.