What is just cause?
According to Canadian courts, just cause is “serious employee misconduct during the employment relationship that strikes at the very root of the employment contract such that it can be said that the employment contract cannot continue or be repaired.” It is described as the capital punishment of the employment relationship.
If there is truly just cause for dismissal, then the result is that the employer can dismiss the employee immediately, without any requirement to provide notice or reasonable notice or severance or any pay in lieu of notice.
However, except in the clearest cases, just cause is very difficult for the employer to prove. Not all employee misconduct provides just cause. In fact, employee misconduct must be of such serious nature that it fatally fractures the employment contract. The burden for proving that the alleged misconduct amounts to just cause is on the employer.
When is just cause warranted?
Just cause is typically alleged by the employer where the misconduct relates to:
- Theft or dishonesty
- Insubordination or willful refusal to follow a direction of the employer
- Incompetence or poor performance
As you can imagine, in cases where the misconduct is theft, or sexual or other assault, or acute conflict of interest, then termination can rightly occur immediately. However, in cases where the employer claims insubordination or incompetence, then numerous instances of the misconduct, together with warnings by the employer, may be required before the employer can lawfully terminate the employment for just cause. This is where most employers get into difficulty.
Just cause dismissal laws in BC are an all or nothing proposition. There is no such thing as near cause, or partial cause. Either the employer can truly claim just cause, or else there is no just cause at all and reasonable notice is owed for dismissal. Often an employer will assert that it has just cause at the point of termination, raising issues it says it has with the employee, hoping to intimidate the employee into accepting the termination. But just as often, the employer cannot possibly prove just cause, despite what it may say. In cases such as this, if there is no just cause, then the employer must provide reasonable notice of termination, which could amount to months’ worth of pay.
In all but the most serious cases of misconduct, the employee is entitled to receive warnings and opportunities to improve before being terminated for just cause. In our experience, most employers fail to give adequate warning and jump straight to dismissal without notice. This can be a costly mistake for the employer. It is important to be informed of the laws relating to just cause before taking this drastic step.