Because courts determine whether just cause termination exists based on all of the facts of any given case, it is impossible to provide a list of the specific acts that will always amount to just cause.
Past case law helps us in two main ways:
- It tells us what courts look for in respect of each category of misconduct such as insubordination, violence, or poor performance (otherwise referred to as incompetence); and
- It helps us understand how courts apply the above general principles—namely the proportionality requirement.
In respect of physical violence, case law tells us that employers will often be successful in proving just cause where the employee engaged in any type of this conduct on the job. Though, the principle of proportionality means that this is not always the case.
For example, in Shakur v Mitchell Plastics1, Mr. Shakur was a 6 year machine operating employee who was terminated for just cause following a physical altercation with a co-worker, Mr. Kelley. The incident started with “verbal jousting” but progressed to the point where Mr. Shakur slapped Mr. Kelley in the face with an open hand.
Though Mr. Shakur had clearly engaged in misconduct by slapping his co-worker, the Court nonetheless found that the employer failed to satisfy the test for just cause based largely on the proportionality principle. Namely: “There was no evidence that Mr. Shakur had caused any previous disruption or trouble in the workplace, or was anything other than a conscientious worker….”2
In contrast, unlike physical violence, a just cause dismissal for incompetence is much harder for an employer to prove. It requires warnings, training, and a reasonable period of time thereafter to allow the employee a chance to improve.
Parent v Spielo Manufacturing Inc.3 is a good example. In this case, the employee held the position of quality assurance tester but became unable to meet the standard that applied to all employees in this position: that they complete a minimum of 20 test cases per day. While the Court held that the employer had just cause for dismissal, this conclusion was based largely on the fact that:
- she was given warnings that failure to meet the standard would result in her dismissal;
- the warnings consistently stated that it was a requirement to meet the minimum test case completion of 20 per day;
- strategies for improvement were set out without any improvement;
- she was provided with considerable time, over a one year period, to improve; and
- she was allowed a daily opportunity to present concerns to her supervisor if she was unable to meet the performance standard—an opportunity the employee never took advantage of.
Next: Employee’s defence: condonation
1 2012 ONSC 1008.
2 2012 ONSC 1008 at para 15.
3 2013 NBQB 394.
Disclaimer: please be advised that the above information is not a substitute for legal advice, and therefore it is important that you arrange for a consultation with an employment lawyer, to determine how the law applies to your unique circumstances.