Without a doubt, the single most common issue brought to employment lawyers is dismissal of employees. Although most human resource (HR) professionals are educated and certified in this field, many find it impossible to keep up with changing case law, court decisions and penalties. Those employers who do not have onsite HR professional managers or directors also tend to terminate based on their views, winding up in court after the fact, as employees become more aware of their rights.
These scenarios are so common that they will sound familiar to many employers. Typically, the HR director is tasked with terminating a given employee. Often, there will be one or more reasons for seeking termination. The most common among these are the very generic “poor performance,” followed closely by irregular attendance and issues with the employees’ “conduct” or “attitude”. In most cases, employers believe these reasons justify “termination with cause” and therefore relieve the employer of their obligation to provide either “reasonable notice” under the common law or “statutory notice” under the applicable provincial or federal employment statute.
At the risk of oversimplifying a topic that is very serious and potentially costly for most employers, the common thread among all these reasons is they do not rise to the level of legal cause. That is to say, while an employer may have many reasons for wishing to dismiss an employee, it is seldom the case that these reasons will be accepted by a tribunal or court as meeting the very high threshold for dismissal “with cause”. Of course, there are exceptions to this rule: acts or threats of violence, theft (over a de minimis value), dishonesty and some other serious misconduct will usually be sufficient to meet the threshold of dismissal “with cause”.
In cases where there are “performance” or “attitude” issues, prudent employers understand that the impugned conduct must first be documented in writing and brought to the employee’s attention along with the potential consequences of such conduct. From that point, the employee must be given the tools (e.g., training, coaching, etc.) and time necessary to improve. This process is time-consuming and difficult, but these steps are absolutely essential if an employer hopes to rely on cause for dismissal.
Employers who prefer to skip these steps often find themselves paying out common law reasonable notice awards (which are almost always far more generous than statutory notice entitlements) and often moral and/or punitive damages, which can exceed the reasonable notice award.
In conclusion, careful deliberation should always be exercised when an employer decides they wish to terminate an employee. The fact is, there may be several good business reasons for dismissing an employee that will probably not meet the stringent test to establish “dismissal with cause”. The potential costs associated with an unsupported dismissal with cause make consulting with an HR or employment law specialist a recommended first step in the dismissal process for any employer.
Andrew Koczerzuk, BA, LL.B., MSM, is employment law counsel at Pearsall, Marshall, Halliwill & Seaton LLP. He joined the firm in 2018 after retiring from the Royal Canadian Mounted Police in 2016 with 30 years of service. Andrew has extensive experience in workplace investigations and lecturing on employment law issues. He is the recipient of the RCMP Commissioner’s Commendation for Exceptional Service, as well as the Governor General’s Meritorious Service Medal. A graduate of the University of Windsor Faculty of Law, Andrew was called to the Bar in 2006 and he is currently a member of the Law Society of Ontario.
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