Just cause vs near cause: How to ‘act with haste but not hastily’ in workplace investigations

The 'capital punishment' of the employment relationship is finally getting clarification

Just cause vs near cause: How to ‘act with haste but not hastily’ in workplace investigations

Twenty-five years ago, Matthew Certosimo, partner at Borden Ladner Gervais, penned Just cause: The Law of Summary Dismissal in Canada. The best-seller was a hit with legal eagles across the nation.

Alongside his late co-author leading employment lawyer Randy Echlin, Certosimo felt there needed to be a full, academic-level treatment of the Canadian common law doctrine of just cause – something lacking in the legal landscape. 

“It’s always been the ‘capital punishment of the employment relationship,’ but just cause had not been the focus of sufficiently close analysis,” Certosimo tells HRD. “Randy and myself felt that the workplace parties, lawyers and the courts could use such a treatise.”

Each year, just cause cases are forwarded to Certosimo so he can read them closely and update the text appropriately.

“Sometimes, it’s just a matter of adding a new case to an existing footnote – however, other times a significant case comes along and I like to ensure that it’s fully and properly discussed in that year’s supplement.”

The rise and fall of near cause

Having already started work on the 24th supplement, Certosimo is setting his sights on clarifying the context around just cause in Canada. He describes the law developing through “baby steps” over the years, with one update even coming on the eve of the publisher shipping out the first hard copies all those years ago.

“When the Supreme Court issued a clarifying judgement, it did mean we had to go back to the book and re-write that initial chapter,” laughs Certosimo. “But updates like that are pretty rare.”

This particular clarification came in a case called Dowling v. Halifax, where the Supreme Court ruled that there’s no such thing as “near cause”.

“It’s a bit of an historical footnote,” says Certosimo. “Back then, courts across Canada were playing with this concept that if an employee is guilty of some wrongdoing, or some level of poor performance, but not enough to be just cause, then when assessing reasonable notice and severance packages it should be termed near cause.”

However, in Dowling v. Halifax, the Supreme Court clearly said that there was clearly no such thing as near cause.

“Nova Scotia was the last holdout in Canada, at the time, continuing to apply in some way this notion of moderated damages,” says Certosimo. “Ultimately, other appellate courts said it's black or white. Either there's just cause and the employee is entitled to nothing, or there's no just cause and the employees entitled to a full severance package.”

However, as Certosimo tells HRD, he believes that the courts might have been a tad too arbitrary in the ruling.

“Which is somewhat ironic,” he says, “considering that the entire process of determining reasonable notice is very contextual. But with Dowling and the appellate decisions across the country before it, near cause died a quiet death on the eve of our book’s publication.”

Common frustrations with just cause

As with all aspects of the legal landscape, it’s always best to reach out to an employment lawyer before making any workplace decisions. With just cause, the biggest challenges for HR is being able to prove it – with that bar being set quite high.

“It can be frustrating for employers,” says Certosimo. “Especially when they reasonably believe that they have an employee who’s guilty of something that we in any way wouldn’t condone, such as sexual harassment or assault.”

Historically, any kind of sexual harassment or workplace violence has been viewed as serious enough to justify an employee’s summary dismissal.

“In part,” says Certosimo, “because of the impact it has on the employment relationship between that employee and the employer - but also because of the general deterrence consideration that employers have to have if they condone that behaviour on the part of one employee.

Do other employees believe they get to have on “free slap”? One ‘free fight’? That of course would have significant prejudicial implications of the workplace.”

When considering just cause dismissals, the bottom line is to act with haste but not hastily, Certosimo tells HRD.

“Investigate incidents, obtain and preserve the evidence, provide the accused employee with an opportunity to respond to the allegations. Sometimes they dig their grave on their own - so there's no harm in giving them that chance. They may also explain the situation in a way that you hadn't realized and cause you to reflect or change your mind. There's no downside to deliberating and reviewing the evidence and retaining the evidence in case it's needed subsequently in litigation.”

Certosimo also reminds employers of the principle of proportionality – whilst not condoning any wrongdoing.

“The principle of proportionality doesn't mean turning a blind eye – it means ensuring that the employee understands that the misconduct is not condoned. In other words, discipline the employee, put on the record that they are disciplined, make it a final warning if that's justified. But don't necessarily jump to the conclusion that that termination, in all instances, is the right decision.”

To hear more on just cause, the updates and the challenges for employers, listen to HRD Talk’s recent podcast with Certosimo here.

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