With so many of us working remotely, the June issue of BarTalk is a digital-only issue. Watch for our next print issue in October. 

Is There Just Cause to Terminate My Employee?

The top 10 questions employers should ask

As in any area of law, there are nuances that can’t be explained in 625 words. Employment practitioners offer helpful guidance. I know at least one.

Is There Just Cause to Terminate My Employee?

1.What is the issue?

It is important to identify the specific issue leading the employer to consider dismissal for cause. Often, situations of unpleasantness between employer and employee will deteriorate to the point that an employer’s desire to terminate manifests from general unhappiness as opposed to specific misconduct. There are many cautionary tales from cause alleged on vague or unclear grounds.

A clear concept of the wrongdoing or issues will also frame how you proceed – the process will be very different where an employee has been struggling with attendance or performance for some time, as opposed to if the employee engaged in theft or interpersonal harassment on specific dates.

2. What is my source of information?

The source of information can be important both for discussing issues with your employee and – if it comes to it – proving your case in court. Employers should investigate rumours with those who witnessed things firsthand. Occasionally, employees will not want to discuss misconduct they witnessed. A variety of situations will justify an employer directing an employee to attend meetings and answer hard questions about workplace issues.

3. What does the employment contract say?

A review of your employee’s written contract (if there is one) is critical. The contents may reference misconduct, procedures or policies and may also let you know what the risk looks like if you are wrong about cause.

4. What do my policies say?

Policies may prohibit particular conduct or set criteria for workplace tasks. Policies may also prescribe a manner or process of investigations and discipline. Even if the policy is not enforceable against an employee, it may bind your actions in dealing with misconduct.

5. Are my policies enforceable?

Ensuring policies are enforceable takes some work but can be worthwhile. If you intend to discipline an employee for breach of a written policy, that policy must be known to the employee, clear, distributed widely, consistently enforced and reasonable. It must also warn of discipline and/or dismissal to justify those actions.

6. What does my employee say?

Discussing allegations of misconduct with employees is one of the most important steps for employers in contemporary times. Getting your employee’s side of things can help you ascertain what happened (and what you can prove happened) and whether your employee knew it was wrong (and/or if they knew about the policy). From time to time, cause may even arise from dishonesty in the course of an investigation.

Getting your employee’s side in a professional and unbiased investigation may also protect against claims for aggravated or punitive damages if you cannot establish cause at trial.

7. What actually happened?

Once you’ve gathered information from your workforce, documents and the employee, you should make a determination as to what you think happened. Common sense and a more broad assessment of candour play big roles in this assessment. Employers are not without tools to make determinations where there are two contradicting views.

8. How bad is it, really?

With your assessment of the facts in hand, take a step back and consider not only how you see it, but how others might. Are there ambiguities in the policies? Was this an honest mistake? Is there a risk if this employee remains in the workplace?

9. Should I warn my employee?

This question is tied closely to the two preceding. If the issue relates to performance or conduct that is arguably non-malicious, a warning with objective expectations is virtually always necessary. Dismissal without warning may be warranted where clearer issues of interpersonal misconduct, safety or dishonesty are at play.

10. Is there something I missed?

As in any area of law, there are nuances that can’t be explained in 625 words. Employment practitioners offer helpful guidance. I know at least one.