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disclaimer: dismissal obligations, employee protections, and termination requirements vary significantly between Canadian jurisdictions and federally regulated workplaces. Employers should obtain jurisdiction-specific advice before proceeding.
Dismissal for or without just cause?
Dismissal for just cause is when an employee’s conduct, performance or other circumstances provide sufficient justification for ending their employment without the notice or pay in lieu that would otherwise be require. This could be the result of a serious incident, or repeated minor misconduct or performance issues where the employee has been given appropriate opportunities to improve.
This will be a key focus of this article, as it is important to understand not only the circumstances that can lead to a fair dismissal for cause, but also the steps you can take to give an employee an opportunity to respond and, where appropriate, improve their performance or conduct.
Dismissal without cause is when you choose to terminate an employee without alleging that they have done anything wrong. This is permitted in Canada, although the applicable requirements vary between provinces and territories. The employer will generally need to provide the required notice, pay in lieu of notice, or other applicable entitlements.
When is dismissal for cause appropriate?
Before deciding to dismiss an employee for cause, ask yourself: “Have I taken reasonable steps to address the issue and give the employee an opportunity to improve?”
Dismissal can be a stressful and complicated situation for both employers and employees. When responding to performance issues or minor misconduct, support, guidance, and a progressive disciplinary process could resolve the matter, leading to a positive outcome for both parties. A serious misconduct, however, could justify a more immediate dismissal, while a business decision to reduce the workforce will involve different considerations.
To help determine the appropriate course of action, consider the following:
Have you followed an appropriate disciplinary process, giving the employee a fair opportunity to understand the concerns and respond to them?
Where appropriate, have you considered a performance improvement plan (PIP) to help the employee address performance concerns?
Are you dismissing the employee because of misconduct or performance concerns, or is the reason a business need, such as a reduction in available work?
Have you considered whether there are any other factors that could affect the decision to dismiss, including the employee’s contract, applicable employment standards, human rights protections or other statutory protections?
This is not an exhaustive list, and the requirements surrounding dismissal can vary depending on the province or territory, the nature of the employment and the circumstances of the termination. We recommend seeking tailored advice to ensure you are acting lawfully when carrying out a dismissal. Find out more about Bright’s 24/7 employment legislation advice service to speak with an expert.
Enacting a fair dismissal through progressive discipline
The Canadian government’s guidance encourages employers to use progressive discipline when addressing concerns about employee performance and conduct. This is to ensure that employers are maintaining open communication with clear workplace expectations both in performance and in conduct before considering dismissal.
The pathway through to dismissal using progressive discipline can be broken into three main categories:
1. Poor performance due to incompetence
Often times when reviewing employee performance, you might find that they simply are lacking the skills to do the job. In these cases, clarifying the expectations of the role, and the consequences of not meeting these expectations with a face-to-face meeting is going to be your first course of action.
Following on from that, giving your employee the time and opportunity to learn the skills they need, either with training, supervision or practice is the fairest approach.
If performance does not improve despite clear expectations, appropriate support and a reasonable opportunity to improve, dismissal may ultimately be an option.
2. Minor misconduct and neglect of duty
When an employee knowingly breaches workplace rules, policies or reasonable expectations, or deliberately neglects their duties, disciplinary action may be appropriate, kickstarting a formal procedure. Similar to dealing with incompetence, a face-to-face meeting outlining expectations and consequences should first be held.
The following steps are a general guide on disciplinary procedures rather than a mandatory sequence; the appropriate response will depend on the seriousness and circumstances of the conduct.
Verbal warning, a face-to-face acknowledgement that the employee's conduct or performance is a concern, following one or more incidents.
Written warning, formally documenting the concern and explaining what improvement is expected. Further written warnings may be issued where appropriate, indicating that continued issues could lead to further disciplinary action.
Suspension, a temporary removal from the workplace as a more serious disciplinary measure, giving the employee time away from their duties while the issue is addressed. It is important to note that disciplinary suspensions may create legal risk unless supported by policy, contract or other authority. Unpaid suspension carried particular risk.
Dismissal, ending the employment relationship where the employer has determined that continued employment is no longer appropriate.
Keeping a written record of each stage of the disciplinary process, and any investigations, eye-witness accounts or interviews is incredibly important.
3. Serious misconduct
When there is evidence an employee may have engaged in serious misconduct, such as theft, violence, fraud or sexual harassment, immediate dismissal may be appropriate. This is known as a summary dismissal or termination for just cause.
In these circumstances, however, emotions can be high and whilst we are all only human, it cannot be the deciding factor. A thorough investigation should be conducted, establishing the relevant facts and giving the employee an appropriate opportunity to respond. Once a full report is complete, depending on the nature of the incident, dismissal for just cause could be in order.
It is in these instances that detailed records of the entire process, including dates, times, locations, witness accounts, evidence and any applicable workplace policies or contractual provisions is important. These will help you make your defence should the employee seek legal action.
Considerations before you dismiss for cause
Just because you have followed a progressive disciplinary process, this does not automatically justify dismissal for cause. A well-documented procedure, whilst it is your best protection against a dispute, it might still fall short if you haven’t considered the following:
Is the misconduct serious enough to justify dismissal? An employee’s work history and effect on the organization could be sized up against the severity of the misconduct and deemed unjust in a dispute.
Have you followed your disciplinary procedure consistently? Treating multiple cases differently could indicate that you have demonstrated favouritism or been overly punitive to a minor issue.
Have you conducted a full and detailed investigation? Starting and finishing a disciplinary procedure on allegations alone could be seen as insufficient evidence to justify dismissal for cause.
Was the employee exercising a protected right? Some examples might include taking protected leave, filing an employment standards complaint, requesting flexible work, and more. You should review the applicable employment standards, human rights and other employment legislation in your province or territory.
Is dismissal for cause the correct choice? A progressive discipline process does not grant you permission to enact dismissal for cause when giving notice or pay in lieu might be a more appropriate measure.
Hold your ground with expert HR & employment advice
When faced with the possibility of having to dismiss an employee for or without cause, the risk of a dispute might be enough to prevent you from making the necessary decisions to benefit your business.
You should be able to act with confidence, and that’s where we come in. With BrightHR you’ll gain access to 24/7 expert HR & employment advice over the phone so you can get a tailored opinion on your specific case, backed by a guarantee of legal compliance or we’ll cover your court fees.
This is just one way you can benefit from introducing BrightHR into your business. Get started today by reaching out with our simple enquiry form.
Frequently asked questions
Q. QuestionCan I dismiss an employee that has received a driving ban?
See if they need their driving licence to do their job. If they do, speak with them to understand if there are other jobs they could do instead. If there are none, you might be able to dismiss them due to frustration of contract depending on the specific circumstances of the incident.
It is also a good idea to find out how they lost their licence, as they may have a reason that could be reasonable for the employer to try and accommodate. For example, the employee may have had a seizure while driving, which resulted in a temporary suspension of licence.
Q. QuestionCan I dismiss an employee that is no longer turning up to work?
No, an employee who is absent without explanation should not be dismissed automatically. It's best to contact them to find out why they haven't come into work and give them a reasonable opportunity to respond. If you don't hear anything back after reasonable attempts to contact them, you may need to begin an appropriate disciplinary process. You should always follow a fair procedure when considering dismissal.
If the employee continues to be absent and does not respond to reasonable attempts to contact them, job abandonment may be considered. However, employers should not assume job abandonment solely because an employee is absent. Reasonable efforts should be made to contact the employee and understand the reason for their absence before reaching that conclusion.
Job abandonment is not a legislated method of ending an employee's employment, so employers should have clear evidence of the circumstances and follow an appropriate process before treating an absence as job abandonment.
Q. QuestionCan I automatically dismiss someone who has been taken to prison?
The employment contract will not automatically terminate because someone is imprisoned. An employer should follow a fair procedure to find out what has happened. If the employee cannot return to work due to imprisonment, a dismissal case can be made depending on the specific circumstances of the incident.