Dismissal for “Near Cause” – Is There Such a Thing?

The law provides employees a significant amount of protection in cases where employers claim just cause for dismissal.  For one thing, the employee doesn’t have to disprove these allegations.  It’s the employer who must provide evidence of just cause.  Also, just cause is all or nothing and this is a fact at law in British Columbia.   This means the employer must prove not only that the employee was at fault, but that their misconduct was damaging enough to warrant immediate dismissal without notice or severance.


It isn’t easy convincing a judge that an employee deserves such severe punishment and when an employer lacks sufficient evidence, they owe the employee pay in lieu of notice.  However, there are times when the employer has a clear-cut case for dismissal.  Such cases typically involve theft, physical assault, fraud, etc.


Otherwise, it’s not an easy feat for the employer to prove just cause for dismissal, as discussed in the previous article.  As just cause is all or nothing, there is no such thing as “near cause” at law.  Unfortunately, that doesn’t stop employers from using it as a strategic move.


When an Employer Claims Dismissal for Near Cause


Firing an employee can be expensive and may result in many months of notice. Firing for just cause can cut costs and eliminate an undesirable employee in one fell swoop. This may be a savvy business move, but that doesn’t mean that it’s legally correct.  Employers who are aware of the potential legal difficulties in proving just cause have forged a new weapon: dismissal for near cause.


Dismissal for Just Cause or Near Cause: Calling the Employer’s Bluff


Dismissal for near cause doesn’t legally exist, yet many employers successfully use it to intimidate the employees they want to fire.  It’s a threat, generally accompanied by a low-ball offer of compensation for dismissal.  Many employees fall for this tactic, especially when the offer is a restricted limited-time-only deal. The deal being: sign this contract now and walk away with something, or don’t, and walk away with nothing.


The employer offering this type of agreement likely knows that a genuine case of dismissal for just cause wouldn’t hold up in a court of law. Few employees are aware of this, and many sign that dotted line and walk away with a mere pittance compared to the notice or severance pay they should have received according to their employment contract.


Dismissal for Cause - It’s Best to Seek Professional Advice


There’s a lot of confusion on both sides regarding dismissal for cause.  Many employers will claim it, being unaware of whether they are using it correctly or not.  Many employees will meekly accept their dismissal, believing that their employer’s claim of just cause is valid.  The truth is an employer can’t determine that, only a judge can.


Furthermore, just cause is an all or nothing proposition.  Displeasing behavior or misconduct doesn’t always amount to just cause; it usually falls short of it.  When the evidence falls short, the claim is disregarded and the employee is awarded the full measure of notice.


Is your employer within their rights to fire you without notice or compensation?  Don’t take their word for it.  If you’ve been fired for just cause, or you’ve been offered a near cause dismissal deal, contact Employment Lawyer, Bob Yeager.

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