In employment law, “termination for cause” is a last-resort remedy. It is also sometimes referred to as the “capital punishment” of employment and labour law. Termination for cause occurs where the employer dismisses an employee without providing notice of dismissal or a severance package, as there is an alleged “cause” for the termination.
Termination For Cause
At common law, an employer has the right to terminate an employee for cause without providing reasonable notice. Just cause exists where the conduct is such that it becomes impossible for the employment relationship to continue. Under Ontario’s Employment Standards Act, 2000 (the “ESA”), the test is stricter: an employee loses the right to termination pay and severance pay only if he or she is guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer. An employee can therefore be dismissed for cause at common law and still be owed the ESA minimums.
Termination for cause is an appropriate response by the employer where there is prolonged and repeated misconduct, or the employee has engaged in serious acts of wrongdoing such as habitual neglect of duty, incompetence, insubordination, or serious misconduct. It is also appropriate in cases where the employer has attempted to use a progressive discipline procedure but the employee has not responded.
Employer Bears the Onus of Proof
Whenever employers terminate an employee for cause, they will bear the evidentiary burden of proving on a balance of probabilities that they had just cause, as they are the ones alleging cause. Termination for cause is examined on a case-by-case basis. A court looks at the nature and seriousness of the misconduct in its context and asks whether dismissal was a proportionate response. To establish just cause, the employer will have to prove that the acts or omissions of the employee were so significant that the employee’s misconduct repudiated the employment contract, and that the employment relationship can no longer continue.
How Can Law Wise Help Employers?
We understand the risks involved when terminating an employee for just cause, as an improperly alleged cause can result in a wrongful dismissal proceeding. We can help provide the legal advice needed to ensure that all steps taken in a termination for cause meet the applicable legal requirements, to reduce the risk of liability and to limit liability if a lawsuit follows.
If you are in need of legal advice concerning the termination of a particular employee, or if your company has been served with a lawsuit or notice of a legal proceeding in respect of the termination of one of your company’s employees, we invite you to contact us.
Call us at +1 647 948 7819 today!
How Can Law Wise Help Employees?
There may be situations where the employer states that it has terminated the employee for just cause, yet just cause has been improperly alleged. An employee in that position may still be entitled to termination pay and severance pay under the ESA, reasonable notice at common law, or both. In such cases, contact us to speak with a Law Wise employment lawyer about how to proceed.
Call us at +1 647 948 7819 today!