Can I be Terminated…for Cause in Alberta? CALGARY EMPLOYMENT LAWYER explains
Despite employers’ practices, policies and/or procedures which may state that an employee can be terminated for cause, this is not the end all be all, nor are the courts bound to uphold employer’s “zero tolerance policies”. It is ultimately up to the courts to decide whether an employer had been terminated for cause. Unfortunately, many employees aren’t aware of this, and they find themselves accepting their termination with no questions asked.
When one is terminated for cause, employers have a high threshold to meet in order to demonstrate that they had cause to terminate their employee, and that termination was proportionate to the alleged conduct one was ultimately terminated for.
In order to determine whether an employer did have cause to terminate an employee, the following factors are taken into consideration:
- Nature and extent of the alleged misconduct;
- The surrounding circumstances i.e., one’s employment history, roles and responsibilities, policies and practices; and
- Whether termination was proportionate to the employee’s misconduct.
A plethora of caselaw has demonstrated the courts’ unwillingness to uphold termination for cause, when an employee has failed to do the following:
- Provide the employee with a warning(s);
- Provide the employee with reasonable time to improve their behavior; and
- Provide alternate sanctions before termination, i.e., additional training and paid suspension.
Ultimately, it is of utmost importance that employers engage in progressive disciplinary measures before terminating an employee for cause, as demonstrated in the following cases:
- In Great Canadian Roofing & Siding (Red Deer) Ltd and Kent Wing and Director of Employment Standards, 2018 CanLII 150438 (AB ESA), the Plaintiff employee was terminated for cause, following numerous incidents of workplace misconduct such as verbal and physically aggressive behavior. Despite the fact that her employee had a “zero tolerance policy” and was provided a warning, her termination was disproportionate, as the employer failed to apply progressive discipline and clearly let the employee know of the consequences that would follow shall the misconduct continue; and
- In Tomala v. Wal-Mart Canada Corp., 2005 CanLII 2819 (ON SC), Plaintiff employee was terminated for just cause following a one-time outburst whereby foul and demeaning language was used. The Ontario Supreme Court of Justice held that the Defendant employee did not have cause for termination.
Even though an employer may have cause to terminate an employee, if the employer fails to engage in progressive discipline, i.e., written warnings, termination may be disproportionate, and the employee would be entitled to reasonable notice or pay in lieu of notice as a result.
If you’ve been TERMINATED FOR CAUSE, please CONTACT ANY OF THE EMPLOYMENT LAWYERS AT OSUJI & SMITH as you may be entitled to reasonable notice or pay in lieu of notice.
Author: Amanda M. Jacinto