Chapter 13: Dismissal with Cause

Indefinite Employment Contracts

An employment contract is generally presumed to be of indefinite duration unless explicitly stated otherwise. This means that unless either party—employer or employee—decides to terminate the relationship, the employment continues.

Employer's Right to Dismiss Without Cause

Employers have the right to dismiss employees without providing a reason, provided they adhere to statutory and common law requirements. If termination occurs, the employer must give reasonable notice or compensation in lieu of notice.

Just Cause for Termination

"Just cause" refers to circumstances where an employee has committed acts of misconduct that justify immediate termination of employment. To establish just cause, a fundamental breach of the employment contract must be demonstrated. This implies that the employee must have engaged in behavior so egregiously wrong that it renders the continuation of employment unfeasible. Mere possession of a valid reason for termination is insufficient; the employer must illustrate a significant breach of contract.

Challenges in Establishing Just Cause

Judicial systems typically demonstrate a reluctance to acknowledge just cause due to its serious consequences, particularly the lack of entitlement to notice or pay in lieu of notice for the dismissed employee. The burden of proof rests solely with the employer, who must validate the existence of just cause based on a balance of probabilities.

Contextual and Proportional Considerations

In assessing just cause, courts apply a contextual and proportional approach. A single act of misconduct, such as theft or assault, could be sufficient to justify termination. However, several factors must be considered:

The employee’s length of service
The disciplinary record of the employee
Mitigating factors (e.g., remorse, provocation)
Whether a progressive disciplinary approach was followed
The integrity of the investigation process
The employee's response to misconduct findings

Legal Research and Precedents

Determining whether an employee’s actions rise to just cause necessitates thorough legal research to inspect how courts have previously addressed comparable cases.

Limitations on Just Cause

Certain grounds cannot constitute just cause, notably when an employee asserts statutory rights. For instance, employers cannot lawfully dismiss an employee for exercising rights under the Employment Standards Act (ESA) or the Occupational Health and Safety Act (OHSA), such as taking parental leave or refusing unsafe work conditions.

Condonation in Employment

Employers must avoid condoning employee misconduct. Condonation occurs when an employer, upon discovering an act of misconduct, fails to take timely action. For example, if an employee misuses an expense account and the employer waits two years to discipline the employee, they cannot later cite that misconduct as a reason for termination.

Relevant Case Studies

Several legal cases exemplify just cause determination:

Johnson v Marine Roofing Repair and Maintenance Service: An employer's ultimatum backfires, leading to a complex dismissal scenario.
Obeng v Canada Safeway Ltd: Employee dishonesty during an investigation justified dismissal.
McKinley v BC Tel: Employee misconduct needs to be evaluated within the given context.
Litster v BC Ferry Corp: A credible explanation from the employee negated theft accusations.
Weisenberger v Marsh Canada Ltd: Dishonesty, even without personal gain, constitutes just cause.
Henry v Foxco: Isolated instances of insolence may be grounds for dismissal.
Mothersele v Gulf Resources Ltd: Contextual analysis required for employee threats.
Kelly v Linamore Corporation: Off-duty misconduct involving child pornography led to just cause dismissal.
Patterson v The Bank of Nova Scotia: Conflict of interest justified termination for cause.
Chaba v Ensign Drilling Inc: Isolated acts of disobedience considered relevant for termination.
Ontario Human Rights Commission v Gaines Pet Foods Corp: Disability-related absences cannot be used as justification for termination.
Bannister v GM: Cases of sexual harassment leading to dismissal.
Watkins v Willow Park Golf Course Ltd: Just cause confirmed despite investigative flaws.
Render v ThyssenKrupp Elevator: A joking culture does not excuse misconduct.
Hart v Parrish: Cumulative bullying incidents reviewed in context.
Dziecielski v Lighting Dimension Inc: Isolated intoxication not sufficient for termination.
Volchoff v Wright Auto Sales Inc: Importance of clear expectations for employees.
Ly v BC (Interior Health Authority): Probationary employee dismissal standards applied.