Cause and Effect
NO REDUCTION IN NOTICE PERIOD FOR “ALMOST CAUSE”
While most employers are
familiar with the terms
“without cause” and “with
cause” when it comes to terminations,
the concept of “almost cause”
and how that can affect the notice period
of a terminated employee is lesser known.
This is a typical scenario in which this
conversation comes up from employers:
an employee fails to perform up to
the employer’s standards, and eventually
the employer decides to cut their losses
and terminate the employee. The employee’s
conduct doesn’t amount to just cause,
so the employer makes a determination
about a reasonable notice period for the
employee and presents the offer to the employee
upon termination. The employee
then tries to negotiate the package offered,
arguing it is not sufficient to fulfill the employer’s
obligations.
When discussing negotiating a higher
reasonable notice period for a
sub-standard employee, employers often
don’t feel that they should increase
the reasonable notice period to be closer
to the common law standard, because the
employee was only terminated due to their
failure to meet the company’s expectations
of them; i.e., “The employee didn’t do their
job properly. Why are we obligated to pay
them anything?”
There is a seminal case that outlines the
factors for the determination of an employee’s
reasonable notice period following
a termination without cause. The case,
Bardal v. Globe and Mail Ltd., outlined the
main factors for this determination, which
are: the employee’s age; years of service;
legal words
position; and availability of similar employment.
Essentially, the question is how
long should it take this specific individual
to find another job? Underperformance
is not a factor. Specifically, underperformance
doesn’t decrease the amount of
time it should take an employee to find
another job. In fact, someone could argue
that if the employee was incompetent,
they will have a more difficult time finding
an employer who will employ them. Bad
performance (unless it amounts to cause)
simply does not reduce an employer’s obligation
to provide the employee with pay for a
reasonable amount of time for that employee
to find another job.
By Hena Singh, Singh Lamarche LLP
Kotin/Shutterstock.com
A SUB-STANDARD EMPLOYEE DOES
NOT MEET THE THRESHOLDS FOR
A TERMINATION FOR JUST CAUSE.
Continued on page 15
HRPATODAY.CA ❚ SEPTEMBER 2015 ❚ 13