Is there such a thing as “near cause”?

Employers may resort to suggesting something akin to “just cause” at dismissal

In my last column “Just cause: the employer holds the ultimate weapon” (Business in Vancouver, March 8-14, 2005), I said that the employer holds the weapon of just cause, but the law severely curtails the employer’s free use of that weapon, by placing the onus or burden of proving just cause onto the employer.

The employee does not have to disprove employer allegations of bad conduct; rather the employer has to prove sufficient kind and quality of bad conduct before the law will allow the use of just cause.

The employer may only confidently use just cause as the basis for dismissal in the most clear cases of employee malfeasance or fundamentally bad behaviour. But in less clear cases, the employer has to be more careful in using just cause, because the law may ultimately reverse the incorrect use of this weapon.

In fact, however, some employers have adjusted to the situation by forging a new weapon called “near cause.” The employer is entitled to assert just cause given the right facts, but both the employer and employee are likely unclear as to what constitutes the right facts or just cause in any but the clearest case. So it is no surprise that at the point of dismissal some employers have raised facts that reflect employer displeasure with the employee, perhaps going so far as to mention just cause for strategic reasons, even though they are unsure of whether in fact there is just cause or not.

In these instances, just cause becomes something less, “near cause,” yet it is still wielded as a weapon by the employer to do damage to the employee.

Obviously, the employer has charge of the workplace and the employee, and is therefore in position, from a practical if not a legal point of view, to wield just or near cause at dismissal, correctly or incorrectly. To employers who use this technique, the business result is what counts, not necessarily correctness at law.

The desired business result is to minimize costs. Employee dismissals can be expensive due to legal requirements for notice or severance pay. In wielding just or near cause, the employer is often attempting to reduce the employee’s perceived bargaining position, laying the groundwork for a low offer of compensation for the dismissal. The employer hopes to quickly gain agreement and a signed release in exchange for payment of a fraction of what the employer owes the employee.

This technique is often successful. It is done quickly, under tight time-lines and threats that the offer will be revoked. Once the employee agrees and signs the forms and takes the low payment, the deal is done. Only a surprisingly small percentage of employees who have this technique used on them will seek legal counsel before they agree and sign the forms.

But just cause is an all or nothing proposition. That means that just cause either exists, or it does not. If just cause exists, then the employee is entitled to no notice or severance or pay in lieu of notice at dismissal. But if just cause does not exist, then the employee is entitled to the notice allowed by the contract of employment.

Verbal employments and written employments are both contracts of employment. The notice or severance owed at dismissal under the contract can amount to months and months of pay in many cases. To draw this out, if the employee is in fact guilty of some sort of bad behaviour that is acutely displeasing to the employer, but that at law falls short of just cause, then there is no just cause arising from the bad behaviour, and if the employer chooses to dismiss based on the bad behaviour, the full measure of notice owed under the contract must be provided to the employee.

So to be clear, there is no medium position. There is no “near cause.” The courts in B.C. have made it clear that just cause is all or nothing. It is employers’ prerogative to express displeasure, but employer displeasure alone does not amount to just cause. The law requires more.

Having said that, because the employer usually calls the shots at dismissal, there seems to be a large gap between the employer’s place of business and enforcement of the law, and the employee will need help.

Knowing this, then, for an employer to raise “near cause” allegations at dismissal should not be meekly accepted, but should be tested. Remember, when the employer dismisses without just cause, which is the case in most dismissals, the employee is the one with the rights.

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