The legalese surrounding difficult employees can be tricky to decipher
The legalese surrounding difficult employees can be tricky to decipher. HRD Canada recently caught up with Matthew Certosimo, partner at Borden Ladner Gervais LLP, who talked us through the notion of just cause in the workplace – an issue he analyses in depth in his best-selling book, Just Cause: The Law of Summary Dismissal in Canada.
HRD: What constitutes ‘Just Cause’ in the workplace?
MC: In our book, Just Cause: The Law of Summary Dismissal in Canada – which, coincidentally, is currently undergoing its 20th annual review, we really dig into this question, from soup to nuts. But, simply put, if an employee is guilty of conduct that repudiates the employment contract or evinces an intention to no longer live up to their end of the bargain, the employee may be dismissed, summarily. However, because it amounts to the “capital punishment of the employment relationship”, Just Cause is not an easy standard to meet. Our supreme court has said that the contextual approach must be taken, and that the principle of proportionality should be applied; so, we have to ask, “is this employee’s termination the appropriate level of discipline, all things considered?”
HRD: Can you point to a reason why employers often fail to satisfy the standard of just cause?
MC: Essentially, it comes down to acting too hastily. Aside from very serious wrongdoing, such as theft, employers are typically expected to provide a warning, most often multiple warnings, and give the employee a chance to rectify the problem. Too often, employers skip all or part of progressive discipline, to their detriment.
HRD: What piece of advice would you offer to employers dealing with alleged just cause?
MC: I think employers should act with haste, but not hastily. Start by getting the facts straight. Preserve the evidence. Remember to ask the accused wrongdoer for their side of the story. And, depending on the nature of the allegations, an internal investigation, at least initially, may suffice. Then, assess any wrongdoing in context - for example, length of service, disciplinary record, employee duties, workplace norms. And, lastly, consider whether discipline short of summary dismissal would be the proportional response, particularly when dealing with an isolated incident.
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