Have you been Fired for Cause?

If you have been Terminated for cause, call our Hamilton Employment Lawyers today.

 

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Have you been Fired for Cause?

And…what is Exactly is Cause for Termination Anyway?

Been terminated for just cause is a very serious issue. Being terminated for cause means that you have been accused of committing a serious misconduct that warrants termination because of the breakdown of the employment relationship.  If you’ve been fired for cause it’s important that you talk to one of our Hamilton employment lawyers sooner rather than later.

Remember – just cause for termination is very difficult to prove on behalf of the employer – and not every instance of employee misconduct will amount to just cause. To justify termination for cause, or sometimes called summary dismissal, the misconduct must be to such a degree that it breaches the trust and faith that is inherent in the working relationship, or is fundamentally or directly inconsistent with your obligations to your employer.

In short, your conduct must have been apprehensively bad in order to get fired. very bad. If you’ve been terminated for cause call our Hamilton Employment Lawyers at 905-333-8888 for a free review of your case.

How will a Court look at your termination for cause?

Typically, your employer will normally use just cause as a defence to your wrongful dismissal action. The court will then decide whether or not your employer has met the onus of termination for cause. Typically, the issue of cause is examined in a contextual approach, assessing the misconduct in light of the surrounding facts of the particular case.

A court will typically look at whether or not your misconduct was so serious, or so bad, that it strikes at the heart of your employment relationship. The court will look at the nature and the extent of your misconduct, but will look at other things such as:

  • your age
  • your employment discipline history
  • your seniority
  • your role in the company
  • your responsibilities and the company
  • your personal circumstances

When looking at the employer’s side of the case, a Court will typically look at:

  • nature of your employers business activity
  • any relevant employer policies or procedures
  • the employee’s position within the organization
  • the degree of trust reposed in the employee
  • the severity of the potential or actual harm to the employer as a result of your misconduct

Then, when weighing these factors, a court will decide whether summary dismissal was warranted as a proportional response to your actions. A court will look to strike a balance between the severity of your misconduct in the sanction imposed. Cause is very, very hard to prove and is a very high onus for the employer.

Will a Judge look at my overall character of employment?

Normally, yes. A court will consider the character of the employee’s employment to determine whether the employee’s misconduct gives rise to a breakdown of the employment relationship. If the nature and seriousness of the misconduct defeat the purpose of the employment relationship, then summary dismissal may be justified.  For example, a person in a senior position as a fiduciary duty to his or her employer and a court must examine whether those fiduciary duties are breached.

Also, are you in a position of trust? If you are a mortgage broker, a banker, or anyone that deals with money, then the nature of your employment will definitely be taken into consideration a theft as alleged. Are you in a management position and accused of sexually harassing your subordinates? Are you professor that is unfairly grading your students based on who you like? The character of the employment relationship matters because the greater the amount of autonomy, the more fundamental that trust becomes to the employment relationship.

Will a Court look at how long I’ve been employed if I been terminated for cause?

Yes, your length of service does becomes important in the contextual analysis, if, after a very long period of service, with little or no disciplinary record, you are dismissed after one incident of misconduct.

What if I had a clean record, does that matter?

Yes. This goes hand-in-hand with your length of service. If you have an unblemished disciplinary record, this will be a relevant factor that mitigates the effect of the misconduct on the employment relationship and will be a question for a trial judge to consider. The trial Judge does not need to formally balance the length of service and disciplinary history with the nature and severity of the misconduct, although the court may find that a informal balance is appropriate in the circumstances.

What about the “proportionality” of the misconduct that I’d been accused of?

If you been terminated for just cause than the principle of “proportionality” strives to balance the severity of the misconduct with the sanction imposed. Remember, an employment contract is a special contract with an inherent power imbalance the places employees in a vulnerable position vis-à-vis the employer. Courts certainly recognize this power imbalance when they conduct their assessment of whether just cause has been proven.

In the end, the sanction imposed (termination) must be proportional to the offense. Just cause dismissal or being fired for cause is considered the “capital punishment” of employment law. Your conduct must of been so serious that it strikes at the heart of the employment relationship. This involves an assessment of whether or not your misconduct is reconcilable with sustaining the employment relationship or whether or not the employment relationship is completely destroyed. A court may in fact find no just cause when a lesser sanction (such as a disciplinary warning) for the misconduct, rather than summary dismissal, would’ve sufficed.

I was fired without a warning, does the law require my employer to give me a warning, before firing me?

Remember each case is decided on its own facts. Every case is different and it depends on your particular situation. However in most circumstances, before you are terminated for cause, you should have been advised that the misconduct is a matter of serious significance and its continuation could place your employment in jeopardy. Unless a single act of misconduct is extremely serious toward immediate termination, which is quite rare, your employer has a duty to warn you that your misconduct could result in dismissal for cause should further misconduct occur. (See Babcock v. C.&. R. Weickert Enterprises Ltd, 1993 CarswellNS 231 (N.S. C.A.)

Warnings are particularly important when the repeated misconduct relates to poor performance.

In a case out of BC called Burden v. Bank of Nova Scotia, 1997 CarswellBC 2018 (B.C. S.C.), the Judge noted that that:

“An employer may dismiss an employee summarily for repeated instances of unacceptable work performance, where the employer has shown it has established a reasonable and objective standard of work performance, warned of the consequences of failure to meet the standard and given the employee time and assistance to remedy her work performance.”

What about a final warning, does my employer have to give me a final warning?

Again, depends on the situation because each case is decided on its own facts. However, in most cases, the employer may only rely upon prior misconduct where a final warning is given, prior to the culminating incident that forms the basis of the just cause dismissal. In order for an employer to be able to rely on the final warning as part of an allegation of cumulative just cause:

  • the final warning must be given before the final culminating incident
  • the employee must be aware of the final warning
  • the employee must be given a reasonable opportunity to improve after the final warning was issued. The reasonable amount of time for improvement will vary depending upon the nature of the problem (for example, a performance issue may require more time to rectify than a purely behavioral issue).
  • the employee has failed to improve his performance, after the final warning
  • the cumulative effect of the misconduct must prejudice the proper conduct of the employer’s business.

What if my Employer didn’t warn me that I could be fired for my misconduct?

Remember, again, each case is decided on its own facts but typically, the failure to warn an employee is considered to be “condonation”, or in other words, that your employer accepted the improper behavior.

What are some examples of how an employee can be terminated for cause?

Some examples (taken from past cases) of employees terminated for cause were found when:

  • the employee, in an attempt to obtain a job, misrepresentsedhis or her background, skills or qualifications at the hiring stage;
  • an employee driving a company vehicle or operating company machinery while intoxicated;
  • an employee was fighting with a fellow employee. Employee violence has been held to be cause for misconduct;
  • an employee sexually harassed a female co-worker. Sexual harassment may justify termination for cause since it interfered in the proper operation of the employee’s business;
  • Rude and racist joking in front of customers has been held to be cause for discharge;
  • an employee engaged in hurtful and malicious conduct toward a co-worker;
  • employees in control of a truck who admitted to drinking beer in the vehicle while hauling critical employer equipment, and also lying about the incident, were dismissed for cause;
  • threats of violence can be held to be cause for termination;
  • employees have been willfully disobedient. Willful disobedience by an employee to a lawful and reasonable order is cause for dismissal since it repudiates the essential condition of the employment relationship that employees must obey their employer’s instructions. However, if an employee is incapable of obeying a command, then his or her termination will not be justified
  • employee was found to have stolen from his employer. Theft is one area where the employee has few defences to a judicial ruling that just cause exists. Even one isolated act is cause for dismissal.  Theft and dishonesty are the most serious charges of misconduct and justify an employer terminating the employment relationship. Employers are entitled to honesty from their employees. When theft involves criminal charges, an employee can still be terminated if the employee is acquitted. Even if a court does not find beyond a reasonable doubt that he or she committed a crime, it is still possible that the company can prove cause for discharge based on the balance of probabilities.
  • an employee was found to have prejudice the employer during off-hours. Any conduct, at home or at work, can be justification for dismissal if it is prejudicial to the best interests of the employer. For example – In a case called Kelly v. Linamar Corp. the Ontario Superior Court of Justice held that the employer had cause to dismiss an employee who had been charged with, but not yet convicted of, possession of child pornography at the termination date. The employer had built a good reputation in the community, which included promotion of activities involving youth. The termination was a reasonable step in the preservation of such reputation.

Have you been terminated for just cause? Contact our Hamilton Employment Lawyers today before you sign anything.

Remember – just because you have been terminated for cause does not mean this is the end. Just cause is very difficult to prove. As each case is assessed in the context of its own unique facts, it may be hard to predict whether a judge will find that a particular misconduct amounts to just cause in the circumstances.  When we represent employers, we always advise our clients that they should seriously consider whether it has credible and sufficient evidence to allege just cause in its defence of a wrongful dismissal action. For example, if your employer alleges just cause as a negotiating ploy or pleads just cause without factual foundation can open the door to substantial liability in the form of moral damages or punitive damages.  If you’ve been terminated for cause, call our Hamilton employment lawyers today at 905-333-8888 and we would be happy to schedule a consultation to discuss your case.

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