Legally Speaking: Dismissal for Cause
By Ron Walton | April 1, 1998
Generally speaking all employees, except those with collective agreements or certain government employees, are entitled to reasonable notice, or pay in lieu of notice, if their employer fires them. The exception to this general rule is when what is known as "just cause" exists. If just cause exists then the employee is not entitled to any notice or severance pay.
Just cause is where an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his or her duties or prejudicial to the employer's business. In cases where a gradual deterioration or the accumulation of a number of minor failings is relied upon as cause for dismissal, the employer has a duty to warn the employee and give the employee time to improve performance before dismissing him or her.
This is not the case where there is serious misconduct or prejudice to the employer's business. But it applies, for example, where an employee is being dismissed for substandard performance which has been occurring for some time, or for one incident which may constitute cause if the conduct continues.
A written as opposed to verbal warning is suggested as a failure to put the warning in writing may be evidence that no clear warning was ever given. It is not necessary to have the employee sign the warning acknowledging that they agree with the substance of it.
The onus is on the employer to prove that an unequivocal warning was given, that it was understood by the employee, and that the employee was given a reasonable opportunity to improve. Several warnings may be necessary depending on the circumstances. Where performance is in issue, it may also be necessary to state the standard expected and the actions needed to improve the employee's performance, and even to give the employee feedback on his or her efforts to improve. A warning will not be effective where the employee has received a mixed message.
It must be clear that the employee's job is in jeopardy. An expression of concern or disapproval by itself does not amount to a warning. A standard paragraph used for all minor infractions which threatens "discipline up to and including dismissal" does not constitute an effective warning. Neither does a statement that if performance does not improve, "major changes" may have to be made.
Employers should engage in proper legal procedure if they hope to avoid liability when dismissing inadequate employees just as employees should realize that their employer is in process of firing them if they receive a written warning.