An employer can terminate an employee for any number of reasons, or no reason at all. Most commonly, terminations can be grouped into two categories: without cause and with cause, also referred to as just cause. Without cause terminations trigger reasonable notice or payment in lieu requirements governed by the Employment Standards Code, with minimum amounts determined based on an employee’s length of service.

This is a stark contrast to a just cause termination where an employer is not required to provide the employee with any notice of dismissal or a severance package. A just cause termination also results in the dismissed employee being ineligible to collect employment insurance benefits and its stigma can make it more difficult for them to find new employment.

Because of the harsh effect of a just cause termination, they are usually only reserved for the most serious instances of employee misconduct “which goes to the root of the contract and fundamentally strikes at the employment relationship.”[1] Examples of conduct that may warrant a just cause termination include:

• Theft or dishonesty;
• Workplace harassment and violence;
• Insubordination, insolence or incompetence;
• Negligence;
• Serious breach of company policy;
• Assault or sexual assault;
• Unexcused absenteeism and lateness; and
• Criminal conduct.

The bar for just cause is extremely high, with the burden resting on the employer to prove it was justified. Even where an employee is guilty of incompetence or negligence in the workplace, the actual standard required to justify a with cause termination is closer to that of gross incompetence. Moreover, in instances of misconduct, prior documented warnings, the imposition of lesser penalties and the opportunity for the employee to correct their behaviour are often required prior to an employer being able to successfully dismiss an employee for cause.

For employers, just cause terminations should be used sparingly and should only be reserved for instances of serious and egregious conduct. In recent Alberta decisions, courts have become increasingly unwilling to rule in the employer’s favour where a just cause termination is alleged.[2] This is likely due to the significant imbalance of power in the employer-employee relationship. Nevertheless, there may be some instance where a just cause termination is warranted. In that case, it’s important for employers to maintain documentation of all incidents of misconduct or other potential grounds for termination, performance issues, warnings, and prior discipline. It is also recommended to consult a lawyer prior to proceeding with a just cause termination in order to best mitigate their exposure to a claim. Where an employer is found to have wrongfully terminated an employee for cause, a court can often award additional aggravated and punitive damages against them in addition to any award for severance.

For employees that are subject to a just cause termination that is without any merit, they can sue for wrongful dismissal. If successful, the employee may be entitled to lost wages and other compensation in the form of damages.

Our employment lawyers at Getz Collins and Associates can help review your situation and help understand the law and how it applies to you.