Terminating with just cause is probably the most contentious employment law issue any employer will ever grapple with. On the face of it, it’s a simple enough task. An employee does something very bad, thus providing the just cause for an immediate dismissal. The employer fires. End of story.
Except, of course, it’s not.
A Blueprint for Terminating Employees in Alberta
While it would be nice to have blueprint for terminating an employee for just cause, it isn't really something that can be done without fear because the reality is, someone can always sue. It’s possible, of course, and Alberta’s Employment Standards Code tells you roughly when and how you can do it. But it’s not as easy as American sitcoms might make you think.
How to know if you have a case? The fundamental, underlying notion about just cause in the legal sense is that it has to involve serious, culpable conduct of an employee. That means that to be “just,” the cause has to be very serious – a minor performance deficiency does not justify termination, and a major one probably doesn’t either. The employee’s stumble has to be huge. The act has to be “culpable,” too, which means “It was an accident!” actually does function as a get-out-of-jail-free card.
So, something seriously bad and done on purpose gets you part of the way there, but nowhere near the finish line. Even when you're looking at a serious act like glaring insubordination or the physical assault of a manager, while it may constitute just cause, it isn't necessarily immediately just cause. In other words, justifying the summary dismissal of a person without a penny of compensation is a fairly high hurdle to meet.
OK, we get it, not easy. But possible, right?
Yes, but it requires a lot of legwork. If an employer’s lawyer gives just cause a nod, it’s the beginning of operation cover-your-behind. The lawyer will ask for records and documents galore, including statements from other employees or witnesses to the incident.
Good to know: under most circumstances, a terminated employee has up to two years to sue.
When Employees Violate Their Employment Contract
Now here’s the really tough part, and the point most employers flub. The employee does something purposefully terrible that clearly violates the employment contract. You call the lawyer for advice. The lawyer agrees. And then asks, “When did this happen? And what has the employee been doing since then?”
If the answer to the first question is three days or three weeks ago, and the employee is still working, you’ve probably shot yourself in the foot. After all, how are you going to explain that to a judge?
But … we had to investigate! Sure, you did, and good for you. But while you’re investigating, make the employee stay home (with pay), because every moment they stay on the job after the “possible just cause” incident weakens your case.
So does being too nice. It's great to reward good performance, but employers also need to be pointing out - and documenting - bad behavior as well, especially when it happens again and again.
When an Employee Is Incompetent
That’s what makes firing with just cause for incompetence nearly impossible. In most situations when an employer wants to get rid of a badly performing employee, the incompetence isn’t a new thing. So, if employers haven't managed the situation properly all along, they likely won't have the documentation to prove the employee's poor performance.
At that stage, many employers thrown in the just cause towel and choose to ante up however many weeks’ pay the Employment Standards Code prescribes.
The moral of the story: if you’re going to fire for incompetence, do it sooner rather than later, and preferably while the employee is on probation, during which time no notice is needed for termination. But tread carefully here: an employee isn’t automatically on probation just because she’s new, or because you think she’s on probation. The probationary period and what it entails needs to be spelled out in the employment contract.
Often, employers will choose to put up some money even if they have just cause in order to leave the employee with some goodwill - and the employer with a sense of assurance they won't come after them later.
The Alberta Human Rights Commission, of course, is the watchdog that ensures just cause or other forms of employment termination don’t violate the Alberta Human Rights Act. Few employers set out to violate the act or discriminate, but there are certain areas that may trip them up. In particular, situations that involve addictions and the extent to which employers need to accommodate employees with addictions may require specialized legal advice before you hand out that pink slip. After all, better safe than sorry.
It’s advice to keep in mind the next time you feel the urge to holler, “You’re fired!”