Terminating An Employee For Cause
Terminating an employee or when an employer terminates your employment is a challenging situation for both parties. Many factors come into play in the decision to terminate an employee and determine whether the employer has cause to summarily terminate an employee or whether an employee is entitled to termination pay and possibly severance.
What Is A Just Cause Termination?
Alberta employers may terminate an employee’s employment for just cause or without cause. Sometimes in the heat of the moment, or without proper HR guidance or legal advice, employers use the wrong form of termination, which exposes the employer to liabilities including claims for wrongful dismissal, for insufficient notice or severance, lost wage claims, human rights claims and other claims.
Basic but fundamental examples of some differences between just cause and without cause terminations include the following as detailed below.
Just Cause Terminations
Just cause terminations require a high legal burden of proof. The burden is on the employer to prove just cause, not for the employee to disprove it. Therefore, the employer must demonstrate that the decision was a reasonable and proportionate response to the alleged wrongdoing. This decision must also take into consideration the surrounding circumstances, the employee’s record and past progressive discipline levied against that employee, results of any disciplinary investigation and often the seniority of the employee. Just cause terminations can occur as a result of a single incident or a series of small incidents, such as:
- Undermining, offending or repudiating fundamental terms of an employment agreement;
- Misconduct that breaches the essential and inherent trust implied in all employment relationships, in a way that no chance exists to repair the trust between employer and employee;
- Falsifying records;
- Violence or threatened violence;
- Serious misconduct that is incompatible with the employee’s duties and prejudicial to the employer’s business and reputation;
- Acts of dishonesty, insubordination and abandonment;
- A single incident that is criminal or quasi-criminal in nature; and lastly
- A series of small incidents like habitual neglect of duty, incompetence, poor performance, absenteeism and lateness.
Test To Determine If The Reason For Termination Is For Cause
The most effective way for an employer to ascertain whether or not just cause for dismissal exists in a specific set of circumstances is to objectively determine whether or not the impugned action or conduct makes it more or less impossible for the employer/employee relationship to continue on any kind of reasonable basis. If the employment relationship can continue, then just cause for dismissal likely does not exist, although a lesser form of discipline is likely justified and appropriate. In most situations, a key step for employers is to obtain legal advice from an employment lawyer prior to terminating an employee for just cause, . If you are an employee that has been terminated for cause, we strongly recommend you get the facts of your case reviewed by a employment lawyer at Kahane Law Office.
Employee Terminations Without Cause
An employer can terminate anyone at any time, without cause, provided the employer provides the employee with adequate notice or severance in lieu and provided no human rights discrimination occurs. Therefore, without cause terminations are a tool that allows an employer to manage its workforce. For example, without cause terminations include the following (Note: these are only examples, more situations exist):
- The employer no longer requires the employee’s services, for whatever reason;
- The employer is forced to respond to economic hardships or a downturn in the economy;
- An employee exhibits unsatisfactory job performance that falls short of just cause;
- The employer has decided to restructure its operations; and lastly
- The employee is no longer a good fit for the organization.
Proving Termination For Cause
Proving termination for cause often causes issues for employers. The challenge of proving misconduct is magnified when an employer wishes to terminate for cause based on a series of smaller repeated issues. The onus to prove cause rests with the employer. In addition to the type of behavior which triggered a termination for cause, courts looks at additional factors. For example, these factors include the:
- Culture of the workplace;
- Type or nature of the employees misconduct;
- Position held by the employee;
- Timing of the misconduct (during work or outside of work); and lastly
- Nature of the business.
Determining Reasonable Notice
Determining what constitutes reasonable notice or severance in lieu often falls to specific details and case law. Consulting a lawyer to review it is advisable. On an employee receiving a severance package, the best course of action is to connect with an employment lawyer to review it. This ensures the package completeness and all areas of compensation and applicable benefits are properly addressed in the offer.
Key Times For Employers To Hire A Lawyer For A Termination
In both just cause and without cause terminations, the courts review each matter on a case-by-case basis. To reduce an employer’s risks and to avoid the legal pitfalls of an improper termination with or without cause, or to provide an employee with advice if they have been terminated with cause, with no severance or without cause with severance, we recommend you obtain legal advice. Kahane Law’s experienced team of employment lawyers provides the legal advice you require and advice specifically tailored to your specific needs and unique circumstances.
Hiring A Lawyer For A For Cause Or Just Cause Termination
For assistance or additional information on terminations, determining proper severance calculations and legal considerations specific to your circumstances, whether as an employer or an employee, please contact Kahane Law Office Employment Lawyers. Often emails allow for a faster response if you include some basic details of your situation. Please email today to contact us or call 403-225-8810.