Termination should never be a foregone conclusion
Determining whether just cause exists and considering redeployment elsewhere
Feb 28, 2017
By Brian Kreissl
Termination of employment is an extremely harsh measure, and for that reason it is a decision that should never be taken lightly. This applies to terminations both with and without cause.
In many cases, it is important to try to salvage the employment relationship. However, managers need to be able to recognize instances where the situation is beyond repair and be able to act with courage and confidence in terminating an employee.
Yet managers and executives should have advice and assistance from HR before pulling the trigger. This is especially important in situations where just cause is alleged.
Termination with cause
Summary dismissal (without notice or pay in lieu of notice) is often referred to as “the capital punishment of employment law.” Indeed, termination of employment for cause is an extreme measure, and it is notoriously difficult to prove just cause under Canadian employment law.
Where just cause for termination exists, the idea is that no notice or pay in lieu of notice is owed to the departing employee. In such situations, only unpaid salary or wages and accrued vacation pay is paid to the individual.
But because reasonable notice can potentially be up to two years’ salary or even more, employers must be pretty certain that sufficient justification exists before attempting to terminate an employee for cause. For that reason, termination should never simply be a foregone conclusion, and managers shouldn’t be left to make the decision to terminate for cause on their own without obtaining the advice and support of an employment lawyer or a qualified HR practitioner.
It is often necessary for HR to conduct a proper workplace investigation to uncover all of the facts before making the decision to terminate — particularly where just cause is alleged. Similarly, HR should be involved whenever there is any hint of a manager wanting to terminate an employee for statutorily prohibited motives such as those relating to prohibited grounds under human rights legislation, whistleblowing under occupational health and safety legislation or because of an employee’s union activities.
Even where the behaviour would appear to be particularly egregious in nature, it is important to examine the facts of the case. Conduct such as theft, insubordination or fighting may not amount to just cause and is dependent on factors such as the employee’s length of service, disciplinary record, personal circumstances and whether or not the individual has shown any remorse.
Only in very serious situations amounting to gross misconduct will summary dismissal be warranted for a single incident. This is something employers need to be careful about because progressive discipline is generally required in order to terminate for cause. Similarly, it is very difficult (but not impossible) to terminate an employee in Canada purely for inadequate performance in the absence of reckless, lazy, insubordinate or negligent behaviour.
Redeployment elsewhere in the organization
The majority of employee terminations happen in situations where just cause does not exist. In such situations, reasonable notice is generally required under the common law, or at least in accordance with the notice provisions (and severance in some jurisdictions) in the governing employment standards legislation where a termination clause exists limiting the amount of notice on termination.
Termination without cause applies to situations involving downsizing, plant closures or where there is simply a lack of fit with the organization or the position in question. Just cause is an “all or nothing” proposition, and even where the employee is somehow at fault there may still be insufficient reason to terminate for cause.
In the absence of just cause, it generally makes sense to try to retain a departing employee by redeploying him elsewhere in the organization. This is a win-win situation for the employer and employee and is especially useful where the individual would be a fit for a vacancy in another part of the business. Such an approach can save on termination costs, improve morale, retain organizational knowledge and have a positive impact on the organization’s public image and employer brand.
Readers who are interested in learning more about law and best practices surrounding employee terminations can consult several excellent resources from Thomson Reuters. One such resource is the recently published book entitled The Law of Dismissal for Human Resources Professionals, Second Edition, by Howard Levitt.
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Brian Kreissl is the product development manager for Thomson Reuters Legal Canada's human resources, OH&S, payroll and records retention products and solutions.