The law places restrictions on its use, but when justified, the employer holds all the cards
In a previous column, “What Puts the Wrongful into Wrongful Dismissal?” (BIV December 7-13), I said that an employer can dismiss or bring an end to employment for any reason, and the reason does not have to be a good one. The reason for dismissal is mostly irrelevant to wrongful dismissal, unless the employer is claiming just cause for the dismissal. If the employer dismisses for any reason, but without just cause, then the employer must provide notice of the dismissal to the employee. When the employer dismisses without just cause, the employee is the party with the rights.
But what is the result if the employer has just cause? When the employer actually has just cause to dismiss, then the law allows the employer to dismiss immediately and provide no notice or severance or payment past the last day of employment at all. When the employer dismisses with just cause, the employer is the party with the rights.
In true just cause cases, the law allows the employer to inflict the punishment of sending the employee away with no notice or severance. But because dismissal without notice or severance is the most severe punishment that the employer can inflict in the employment relationship, it is a weapon that the law will restrict. The law therefore makes it difficult for the employer to use just cause for dismissal.
To strip it down to its fundamentals, just cause is an all or nothing proposition. Either the employer has just cause, or it does not. Either the employee is entitled to notice or not. This is a fact at law in British Columbia. The courts have given crystal clarity on this point.
Another point is clear at law. The employer has the onus or burden of proving that it has just cause. So it’s not left to the employee to disprove just cause, rather, it’s for the employer to prove it.
But what is just cause?
Just cause is serious employee misconduct in the employment relationship that, by it’s nature, strikes at the very root of the employment contract so that the employment contract cannot be repaired or continued. The employee behaviour that falls into just cause is relatively rare in the case law. Therefore, employee behaviour that falls short of just cause, which is more common employee behaviour, will not allow the employer to claim just cause.
As with anything, there is a range of facts, from clear to less than clear, that involve just cause allegations by the employer. There can be facts that clearly cut to the root and disclose just cause. Clear cases of just cause usually involve the obvious bad incident fact patterns such as physical assault, theft, critical dishonesty, secretly competing with the employer, gross and palpable incompetence, and such instantly apparent bad and damaging behaviour inconsistent with the continuation of the employment relationship. Single incidences of these types of employee behaviour without mitigating facts probably constitute immediate grounds for dismissal for cause. There is usually no issue with these cases of whether there is just cause. The employer knows it, the employee knows it, and the matter usually ends there.
Less clear cases are more difficult. The risk with less clear cases is twofold. Where the employer asserts just cause, either the employee submits and accepts the employer’s conclusion and moves on, or the employee rejects the employer’s conclusion. In the first situation, the employee may have conceded, even though the employer did not in fact have just cause. In the second situation, these are the cases that draw litigation, end up in a courtroom and form the common law on this topic.
Less clear cases of just cause typically involve performance issues, disobedience, insubordination, or dereliction of duty, which usually require repeat instances of sufficient magnitude, and perhaps at least a clear warning or two, before the law will allow dismissal for cause. A lot can go wrong for the employer in handling the less clear case, because it involves the passage of time, clarity and procedural correctness and fairness.
It is important to know that the employer’s conclusion of just cause is just that. It’s the employer’s conclusion. But just cause is ultimately a legal determination, made by a judge.
What flows from this point is that if the behaviour of the employee is rightly blameworthy, but not blameworthy enough to constitute just cause, then the employer may not dismiss for cause. At dismissal, even though the employer is blaming the employee, and even though the blame is for some actual fault of the employee, if there is no just cause, the employee is owed the notice or severance called for under the contract. Remember, just cause is all or nothing, and in all but the most clear cases, it is difficult for the employer to prove. The law makes it that way so as to protect the employee against misuse of the employer’s ultimate weapon.