An employer has the legal right to terminate an employee. This right, however, is not absolute and can be costly.

The Human Rights Code sets out certain personal characteristics that can form the basis of a discrimination complaint. An employer may not adversely treat an employee, for example, because of religion, political belief, disability or age, amongst other protected grounds. An employer is also required to accommodate protected characteristics to the point of undue hardship – significant difficulty or expense, which is considered on a case by case basis.

The Employment Standards Act sets out mandatory requirements for the treatment of employees in BC. This includes minimum amounts of written notice an employee must receive if their employment is ending without cause or payment in lieu of notice referred to as “compensation for service”. (For more insight into what is considered “reasonable notice”, see our blog post on wrongful dismissal here.)

What Is “Just Cause”?

Just cause may include serious or minor misconduct but, in either case, the standard to reach it is high. An employer is not required to give notice or pay compensation for service if it can prove just cause exists for the termination.

There are certain behaviours where a single act of serious misconduct may qualify as just cause. The behaviour must go to the heart of the employment relationship such that it is inconsistent with continued employment. Examples of this include theft, fraud or dishonesty.

For minor misconduct or unsatisfactory performance, it is more difficult to establish just cause. Before terminating an employee for poor performance or absenteeism, for example, an employer must show that:

1. The standard of performance was clearly communicated to the employee;
2. The employee was clearly warned that he or she was failing to meet the required standard and that continued failure would result in dismissal;
3. The employee was given a reasonable amount of time and assistance to meet the required standard; and
4. The employee continued to fail to meet the standards.

This process generally involves multiple written warnings and each incident will be considered independently as well as cumulatively. For example, an employee of six months who is late for a seventh time will be treated differently from an employee of 16 years who exhibits similar behaviour.

Employers must be careful not to condone bad behaviour by failing to apply internal policies in a consistent and timely manner. An employer cannot rely on behaviour previously ignored in order to later terminate an employee for just cause. This would breach the requirements that the employee have the standards clearly communicated to him or her and be given notice that his or her position is in jeopardy.

Case Study

In a recent Ontario case, a nurse was terminated from a long-term care facility after she was found with unauthorized Hydromorphone. At the time of her termination, she had been working for the facility for approximately 13 years. After a week on paid leave while the employer conducted an investigation, the nurse confessed to a substance abuse problem and stealing narcotics over the past two years. Her actions also included falsifying medical records and giving incorrect dosages of narcotics to patients, significant breaches of protocols at the facility. The nurse was terminated for cause.

Following her termination, the nurse was diagnosed with a mental illness (drug addiction) and attended rehab. The nurse’s union filed a complaint over her dismissal as discrimination. Following the arbitration (similar to a trial), the arbitrator (similar to judge) found that the nurse was discriminated against on the basis of mental illness as her addiction was a factor in her dismissal. He specifically found that her addiction diminished her ability to comply with workplace rules.

As a result, the nurse was found to be wrongfully dismissed and was entitled to any lost wages and was reinstated to her position. The employer was required to accommodate the nurse for her disability to a point of undue hardship, recognizing there may be limitations on her conduct going forward (such as not being permitted to handle narcotics). The nurse was also compensated for the employer violating its procedural duty to accommodate by failing to make inquiries when staff brought up concerning observations, such as the nurse taking medications to her office prior to administering it to patients.

Reinstatement is generally not an option if a union is not involved, however, an employer could be responsible for significant damages. If an employee has been incorrectly terminated for cause, an employer may owe the employee wages of up to two years, as well as punitive or aggravated damages depending on how the employee is treated. If discrimination is involved, an employee may also be entitled to damages for injury to dignity and hurt feelings.

EmPloyees

If you have been terminated and want to know what your entitlements are, we can help.

Employers

If you are considering terminating an employee and want to know what your obligations are and how to limit liability, we can help.