Where two wrongs may make a right.

Firing someone is rarely easy. Deciding whether there is cause for the dismissal is nearly as difficult.

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An employee is entitled to reasonable notice of the employment contract's termination. There is an exception, however. Where "just cause" exists, the employer is entitled to dismiss the employee without providing notice, or payment in lieu. This is so even in the case of long-service employees.

Cause can take many forms. Serious misconduct, habitual neglect of duty, conduct prejudicial to the employer's business, incompetence, conduct incompatible with the employee's duties, or willful disobedience of orders are some cases that might qualify.

Whether the misconduct is serious enough to warrant dismissal is determined on a case-by-case-basis. The seriousness of the conduct is judged from the point of view of an objective observer, although the employer's subjective view of the misconduct sometimes warrants consideration. The onus of proving just cause is borne by the employer, who must show (on a balance of probabilities) that the misconduct warrants the summary dismissal of the employee.

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The misconduct needed to uphold a summary dismissal differs from employee to employee. Lower standards may apply to probationary employees, and the hurdle may be higher for a senior-level or long-service employee. Conduct that would not constitute just cause in the case of an assembly-line worker may warrant the summary dismissal of a supervisor.

An employer cannot seize upon a minor misconduct to justify summary dismissal. Similarly, a single incident of misconduct may not be enough. This is particularly true where the misconduct of the employee is provoked or aggravated by the employer, or where the employee was not wholly responsible for the conduct.

Other factors are the past good conduct of the employee as well as the cause of the misconduct, especially where the behaviour is out of character. The employment agreement may be characterized as a "relationship agreement" rather than a "transaction agreement" and is not static over time. An isolated incident of bad judgment after many years of employment may not amount to just cause, even if the employer's policy has been breached, whether or not the employer has experienced monetary harm or damage.

That being said, a single act of misconduct may justify termination in exceptional circumstances. This could include situations where the misconduct complained of is extremely prejudicial to the employer, where it is likely that the consequences of the misconduct will not be confined to the single incident, or where it is clearly against the employer's rules or policies. Other situations may include where the conduct is serious and wholly incompatible with the employee's duties, if it is prejudicial to the employer, or where an inappropriate message would be sent to the remaining employees if there were no dismissal. A lack of remorse might be a factor, or where it would be difficult for the employee, because of his or her position, to resume or fulfill duties after the misconduct. In summary, a single incident of misconduct must be willful, deliberate, and show gross incompetence to justify dismissing the employee without providing notice of the termination.

Because the onus is on the employer, that burden can be high. This means that employers will often make some payment to an employee, even though they believe there is cause, to avoid the uncertainty of a lawsuit. An employer needs to be careful, though; without proper releases, a payment could lead to further liability in the future.

Also bear in mind that where a written employment contract addresses termination for just cause in certain circumstances, or deals with termination without dealing with cause, the employer's right to summarily dismiss the employee may be limited.

The decision to terminate an employee on the basis of misconduct should not be taken lightly. Because summary dismissal is an exception to the employee's general right to receive reasonable notice, summary dismissal for just cause can usually only be used for serious situations.

Shawn is a lawyer with Wallace Meschishnick Clackson Zawada in Saskatoon. Questions or comments on this article can be sent to him at [e-mail]