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EMPLOYMENT LAW
Jun 30, 2015

Go directly to dismissal

Employees can be terminated for cause without previous discipline, but it’s not easy
    

By Jeffrey R. Smith

While employers are able to dismiss employees for just cause, it’s often difficult to do so. Canadian employment law largely looks to protect the employee, due to various assumptions, such as the employee is the weaker party in the employment relationship and employees rely on their employment for their livelihood and for a part of their identity.

Therefore, while dismissal for cause can be done, there’s a pretty heavy onus on the employer to prove just cause exists. Many decide just to dismiss without cause and pay out the required compensation in lieu of reasonable notice.

Progressive discipline is held up as an alternative to dismissal a lot of the time. This gives the employee the opportunity to understand what the problem can be and the chance to rectify things and improve. Only after multiple instances of discipline, with no sign of significant improvement, could there be just cause for dismissal.

But can an employer dismiss an employee for just cause without going the route of progressive discipline? How serious should the reason for dismissal be to warrant immediate termination of employment?

Recently, a British Columbia employer fired a worker who was on a helpdesk team that provided internal technical assistance to other employees. The worker had access to sensitive information kept on the employer’s computer system and worked with little supervision. The employer had clear policies regarding the access of personal employee information — express permission from the employee in question was required. 

The worker was caught accessing a manager’s personal folder to find out where she was on a parking priority list. She was immediately dismissed and two levels of courts upheld the dismissal, finding “(the worker’s) conduct… breached the faith inherent to the work relationship, the result of which was that the relationship had irrevocably broken down.”

Of particular consideration was the fact the worker’s position required a significant amount of trust and the worker intentionally violated that trust: See Steel v. Coast Capital Savings Credit Union, 2015 CarswellBC 710 (B.C. C.A.). 

A lot of the time, determining whether just cause for dismissal exists comes down to trust. Can the employer trust the employee to do a good job? Can the employee be trusted to act honestly and in good faith?

If that trust is seriously broken, it may not be able to be repaired, in which case the employee’s actions broke the employment relationship and made termination necessary. But, often, if a court or arbitrator sees even a grain of a chance the employment relationship can be mended, reinstatement may be ordered or wrongful dismissal damages may be awarded. 

But if an employee is guilty of serious misconduct that makes it difficult to believe it won’t happen again or the employer’s interests won’t be harmed, shouldn’t that always be just cause? There are always unique aspects to every case that should be examined, but should an employer be expected to continually employ someone and simply discipline them? If an employment relationship can continue but there is some unease about it, is it really repaired? 

But then, determining what constitutes serious misconduct and how to establish the line to just cause can be open to interpretation as well.  

    
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