legal words
BE WARY OF JUST CAUSE
After an employer hears this explanation,
they tend to have a reaction along the lines
of, “We should have just terminated the
employee for cause.” However, just cause
is a very high standard. An employer can
only take the position that they have just
cause to terminate an employee’s employment
where an action or inaction by the
employee has caused irreparable harm
to the employer/employee relationship.
Irreparable harm is a high threshold. The
standard under the Employment Standards
Act, 2000 is even higher, that being wilful
misconduct, disobedience or wilful neglect
of duty.
A sub-standard employee does not
meet the thresholds for a termination
for just cause unless the employee was
provided notice that their performance
was sub-standard, and provided with an
opportunity to meet the standard of performance
but failed to meet the standard.
The amount of opportunity that an employee
is entitled to in order to improve
their performance is case-specific, but it is
usually quite significant – requiring multiple
attempts to assist the employee in
rehabilitating their performance, followed
by the employee’s repeated and complete
failure in meeting the reasonable standards
set for them. When dealing with
sensitive situations such as these, legal advice
should be sought because there could
be other liabilities associated with an employer
miscategorizing a termination as
“with cause.”
For the situation at hand, however, the
unfortunate news for employers is that
they do not get “credit” in terms of the reasonable
notice they need to provide to a
departed employee because the employee’s
performance was not at the expected level.
AVOIDING THE SITUATION
The next question employers ask is, “How
do we avoid this situation in the future?”
The answer is two-fold:
1. Ensure that there are clearly worded
and enforceable employment contracts
that outline an employee’s entitlement
upon termination. Then both the
employer and employee will know
what the employee is entitled to upon
termination without cause. Further, if
employers want to be more generous
Apple_2015_vF_HRPro:24Hr 06/07/2015 12:07 PM Page 1
We’re the
apple a day.
At Sherrard Kuzz LLP we
collaborate with our clients to
anticipate and avoid human
resources problems.
We know that a healthy
workplace today can
prevent painful
headaches tomorrow.
By thinking creatively and
working proactively we help
our clients stay healthy.
If it’s about your workplace,
we’re the only call you’ll
need to make.
RANKED
Main 416.603.0700
24 Hour 416.420.0738
www.sherrardkuzz.com
@sherrardkuzz
with some employees than others, they
have the prerogative to provide a notice
period exactly as it is stated in the
employment contract or more.
2. If an employer wants to take the position
that they have cause to terminate the
employee, they must ensure that they
provide employees with notice that
performance is below expectations and
the opportunity necessary to meet the
standard required of them (making
sure that the standard is reasonable).
Once an employer has provided this
opportunity in accordance with the law
and has this documented appropriately,
they may be in a position to terminate
the employee for cause. Again, this is a
high standard for an employer to meet.
With respect to these very sensitive issues,
it is strongly advised that legal advice
be obtained prior to implementing either,
or both, of these plans. n
Hena Singh is one of the founding partners of
Singh Lamarche LLP.
HRPATODAY.CA ❚ SEPTEMBER 2015 ❚ 15
