A just-cause redo

Discovering just cause after termination isn't necessarily too late

A just-cause redo

Hindsight can be 20/20 — especially if you can use it to go back and prove just cause for dismissal.

Employers in Canada have a high bar if they want to terminate a worker’s employment for just cause. Not only do they have to have clear evidence of misconduct, but that misconduct has to be serious enough to justify dismissal without further warnings or other types of progressive discipline.

Many employers may decide to end the employment relationship through without-cause termination, leaving them on the hook for reasonable notice or pay in lieu of. But what if an employee is terminated without cause, but it comes out later that there would have been cause for dismissal? What can the employer do then?

Often, when damages are awarded in wrongful dismissal claims, the circumstances at the time of termination are used to determine the employee’s notice entitlement. One could assume that an employer’s reasons for dismissal would be considered in a similar way. Indeed, after-acquired just cause is fairly rare. But it is something.

A key element for an employer advancing an argument for after-acquired cause could be that the circumstances justifying dismissal did, in fact, exist — the employer just didn’t know about them at the time. For example, if serious misconduct has been discovered after termination, that misconduct was already going on and would have served as cause for dismissal had the employer been aware of it.

Take, for example, the case of a B.C. employer that terminated a worker without cause and provided the worker with four weeks’ pay in lieu of notice. The worker had to turn in his company cellphone and, upon examination, the employer discovered that the worker had sent text messages to other employees during working hours. These text messages were for the purpose of obtaining illegal drugs so the worker could resell them. When the worker sued for wrongful dismissal, the employer claimed after-acquired cause. The B.C. Court of Appeal found that the worker’s misconduct was incompatible with his job responsibilities — which included health and safety — and the employer had just cause for dismissal.

Unaware employer doesn’t change seriousness of misconduct

The court in the above cause referred to a 1961 Supreme Court of Canada decision that established the principle that the fact that the employer doesn’t know of dishonest conduct at the time of dismissal doesn’t detract from the serious of the conduct and it serving as a ground for dismissal. Basically, if the employer can prove there was just cause for dismissal at the time of termination, it can rely on that cause, regardless of whether it discovered it before or after termination.

More recently, the B.C. Supreme Court found that an employer had just cause for dismissal that was uncovered during legal proceedings. The worker filed a human rights complaint and a wrongful dismissal suit against the employer and presented more than 100 recordings of co-workers and management as evidence in the former.

The employer latched on to these recordings — which included discussions of personal information and overheard other conversations — as after-acquired cause and the court agreed, finding that the sheer volume of recordings breached the employer’s code of conduct, confidentiality policy, and the worker’s professional standards as a certified public accountant.

Sometimes, finding about a worker’s additional or more serious misconduct after they’ve been fired may not do much — the employer may have to just shrug its shoulders and be glad that the worker is gone. But if the worker has been terminated without cause with a good severance package or is fighting the termination in court — new knowledge about past misconduct might just allow the employer go back in time and get a dismissal redo.

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