Employers might be forgiven for thinking that just cause for summary dismissal is, as a legal concept, deceased. Or, as John Cleese once said…
“It’s bleeding demised… it’s passed on. This parrot is no more. It has ceased to be! It’s expired and gone to meet its maker. This is a late parrot. It’s a stiff. Bereft of life, it rests in peace!”
Just cause isn’t quite dead. It just looks that way. Every once in a while, an adjudicator breaks out a defibrillator and zaps a little bit of life into it (either to assure us that it still exists or to fool us into believing it does, I’m not entirely sure which).
Advising Employers About The Just Cause Option
I routinely advise employers not to bother considering just cause for summary dismissal as a viable response to a problem employee. Just don’t go there, because as soon as you open that door you fool yourself into thinking that a successful just cause outcome is possible when, most of the time, it isn’t.
The great majority of the time, when employers hint at a “just cause” approach, we end up finding a more efficient, effective, and reliable way to bring about the employee’s departure. That often involves spending money, but more often than not the money spent will be substantially less than the cost of defending against a wrongful dismissal claim (or Employment Standards Act claim or Human Rights Code complaint). And that outcome will provide certainty rather than tremendous risk.
One of the things employers frequently need to be reminded of is that just because they’ve embraced a position (such as “just cause” for summary dismissal) in relation to an employee doesn’t mean an adjudicator will agree. As I’ve said many, many times, 100% of litigants sincerely believe they will win and 50% of them are ultimately proven wrong.
Embracing the position that you have just cause for summary dismissal could result in a couple of years of litigation, massive legal costs, and an unsuccessful outcome (which, depending on the venue, could involve paying an award of damages and a significant portion of the former employee’s legal costs).
The “Just Cause” Standard
Managers who are involved in imposing discipline need to know that “just cause” for summary dismissal is a very high threshold. Adjudicators refer to it as the “capital punishment” of the employment world.
In essence, in order to dismiss summarily (without notice or pay in lieu) the employer must be able to prove that the employee has engaged in conduct which undermines the employment relationship and renders it irreparable. That’s a lot easier said than done.
There are almost no “automatic firing offences” anymore, and the old “3 strikes rule” (if there ever was one) no longer exists. All decisions about firing for just cause must be made with a contextual view of the circumstances (including seemingly extraneous things such as what was going on in the employee’s personal life at the time) and so any sort of “automatic” firing response is doomed.
When an employer tells me it wishes to fire an employee for just cause, my first question is, “How much of a record of progressive disciplinary measures have you got documented?” That’s because, except in the most egregious of circumstances, a single incident won’t satisfy the just cause standard.
I’ve recently seen a couple of B.C. court decisions which are useful on the topic of just cause.
In Kirk v. Nanaimo Literacy Association, the B.C. Supreme Court determined the employer did have just cause to summarily dismiss its Executive Director.
In brief, the Association’s board of directors had received an employee’s complaint about the Executive Director. The Executive Director wanted to terminate the relationship with that employee, but the board instructed her not to do so. The Executive Director then, through a series of inflammatory and insulting and disrespectful emails, engineered the “collapse” of the Association’s board of directors. Contrary to the board’s instructions, the Executive Director terminated the relationship with the employee and thereby exposed the employer to the risk of litigation.
The Court concluded that the Executive Director deliberately impaired the ability of the board to function, her communications were incompatible with sustaining the employment relationship, she exceeded her authority in a situation in which she was in a conflict of interest, and her actions were incompatible with her duties and were prejudicial to the Association and amounted to insubordination. It upheld the just cause dismissal of the Executive Director.
In Klonteig v. West Kelowna (District), the Court came to the opposite conclusion in relation to the summary dismissal of its Assistant Fire Chief.
Mr. Klonteig, while off-duty and driving an unmarked District vehicle allocated to the Fire Chief, failed a roadside breathalyzer test and was issued a 90-day administrative driving prohibition. Mr. Klonteig had enjoyed a positive employment history with the District, was well liked and had an unblemished employment record and, after the impaired driving incident, was forthright, honest, and remorseful in his communications with the District. Nonetheless, the District dismissed Klonteig.
The Court determined that Mr. Klonteig’s off duty conduct did not amount to just cause for summary dismissal. It concluded that the incident did not involve a high level of moral reprehensibility, he was not the public “face” of the employer, and there was no evidence that the public at large would have been offended by his lack of judgment. Ultimately, his off duty conduct was not incompatible with his faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the District. The just cause dismissal of Klonteig failed and he was awarded five months’ salary.
What can we take from these opposing outcomes? Perhaps not much more than that the concept of just cause still has a pulse (if only faint) but that it’s a BIG roll of the dice to put these things in the hands of an adjudicator.
This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.