CASUAL LEGAL: Progressive Discipline and Terminations for Just Cause

Progressive Discipline and Terminations for Just Cause

By Andrew Skeith

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

When employers are forced to make the difficult decision to terminate an employee’s employment due to performance issues or other forms of ongoing misconduct, there is a tendency to assume that the employer has the legal right to terminate the employee for just cause. Yet the onus to prove the existence of just cause rests with the employer and the inability to demonstrate the existence of just cause may result in an award of damages against the employer.

The effect of terminating an employee for just cause is that the employee is not entitled to any amounts of termination pay under the Employment Standards Code. They are also not entitled to any amount of additional severance pay at common law. Another notable effect of a just cause termination is that the employee will not be able to collect unemployment benefits, such as employment insurance.

However, the reality is that it is difficult to prove that an employer has just cause for termination. It is difficult, and it requires substantial evidence of the misconduct or performance issues over a period of time, with certain exceptions. The Courts have required that an employer be able to demonstrate that a termination for just cause is a proportional response to the misconduct in question. Underlying this idea of proportionality is the principle of progressive discipline: any misconduct or performance issues should be brought to the employee’s attention, they should be made aware that the behaviour or work practices are inappropriate, and they should be provided with a reasonable chance to improve.

The warnings provided to the employee should be documented, ideally in writing, even if the warning was verbal. As the term implies, the discipline should also be progressive, usually commencing with warnings, verbal and written, and increasing in severity from there. If, over a reasonable period of time, the employee fails to correct their behavior, the employer can likely proceed to terminate for cause, and they will have a substantial evidentiary record of their efforts to assist the employee in remedying the misconduct or performance issues to rely upon in the event of a wrongful dismissal lawsuit.

The principles of progressive discipline should be uniformly and consistently applied for all members of an employer’s workforce. When employees are provided with opportunities to improve their behaviours, it benefits all of the parties involved: employers are more likely to have a well functioning work force, and employees have the benefit of being aware of any problematic behaviours before suddenly being handed termination letters.