The ‘capital punishment’ of employment law

Just-cause dismissal can help employers get rid of problem employees, but they need to do their homework to make it stick
By Aleksandra Pressey
|Canadian Employment Law Today|Last Updated: 12/06/2018

When an employee is guilty of misconduct or poor performance, it may seem to be fairly straightforward that there’s a good reason to cut the employee loose without having to worry about notice – especially if there is misconduct relating to harassment or workplace safety that can cause liability for the employer. However, such assumptions can be costly. There’s a high bar for just-cause dismissal and if an employer is going to go that route to try to save on paying termination pay or pay in lieu of notice, it had better be ready to prove that the employment relationship can’t be salvaged.

The rapid developments of the #MeToo era have seen organizations struggle to manage waves of sexual harassment complaints lodged by employees empowered by the movement’s push for widespread workplace reforms. Some of these allegations have resulted in swift dismissals after brief investigations, with employers happy to be rid of alleged wrongdoers and eager to turn the page as they work to restore their workplace cultures.

Indeed, as soon as employers think there is workplace misconduct — or become dissatisfied with employee performance — they’re quick to move to terminate by asserting just cause. The trouble is that most do so without first taking adequate steps to minimize cost obligations through the implementation of effective employment agreement clauses.