Some basics on just cause termination – you may have been terminated inappropriately.
Disputing just cause termination issues are some of my favorite cases to advance for terminated employees. Out of the absolute infinite possibilities I often counsel clients on just cause termination issues such as:
- conflict of interest;
- absenteeism and lateness;
- intoxication and addiction;
- sexual harassment;
- off-duty conduct; and
- illness or disability.
It’s important to note that in appropriate circumstances, any of these forms of misconduct may be sufficient to support just cause termination. Your contract of employment (written or implied) has an implied term which states that your employer can terminate your job for just cause, without being obligated to give reasonable notice or similar statutory termination payments.
The issue in just cause is whether you have been guilty of misconduct, sufficient to support your termination and this is always a factual determination. It is case by case and determined individually and factually.
Who bears the onus of proving your termination for just cause?
Your employer bears the onus of proving just cause termination. Not you. If there is no just cause for an employee’s termination, you will usually be entitled to reasonable notice or pay in lieu of notice from the date of termination. Whether
just cause for summary dismissal exists normally depends upon the employer’s conduct. In some cases, employers may be under a duty to provide you with a warning that particular behavior is not acceptable before resorting to firing you.
The failure to provide a warning may be fatal to a finding of just cause for termination.
The doctrine of condonation is also a potential barrier to a finding of just cause on your behalf. If your employer has previously condoned, overlooked, or forgiven certain misconduct that might otherwise support your termination, your employer may be unable to justify your just cause termination without notice. In such cases, the onus is usually on you to prove that your behaviour had been condoned in the past.
An employer who provides a warning to an employee has been held to have condoned the employee’s misconduct, precluding the employer from relying upon the same incident to support summary dismissal. Of course, if the employee were to repeat the misconduct, or to exhibit other unacceptable behaviour after the warning, just cause for dismissal might be appropriate, notwithstanding the employer’s earlier condonation.
Typically, an employer can only justify a termination for cause based upon conduct that occurred during the employment relationship. However, where the employer discovers, after terminating an employee, that the employee engaged in conduct sufficient to amount to just cause, the employer may use that conduct to justify a refusal to offer pay in lieu of notice.
On the other hand, where the misconduct occurs post-termination, the employer cannot, normally, use that evidence to justify the employee’s summary dismissal. Your post-termination conduct may, however, be properly considered as a factor explaining or highlighting other pre-termination behaviour. While false allegations of cause may result in a finding of bad faith against an employer, a failed just cause defence will not be punished if the allegations of cause were made by the employer in good faith
Absences from employment may or may not amount to just cause – it is all dependent on the facts. In the New Brunswick case of Walsten vs. Kinonjeoshtegon First Nation the Manitoba’s Queen’s Bench determined that two workers unexplained absences did not amount to just cause – since their job expectations (described at “lax”) did not involve fix days hours or even work.
What about misconduct or drinking at work? In the case of Ritchie vs. Richelieu Hardware Canada ltd. an Ontario Judge held that a warehouse manager’s termination for drinking at work was wrongful, seeing how the employer supplied the booze and made it readily available during work hours.
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