Even if the employer can prove the employee’s misconduct and that a just cause dismissal would have been a proportionate response, this does not leave the employee without a defence.
Specifically, if the employee can prove that their employer “condoned” or “accepted” the employee’s behaviour, then the employer’s just cause allegation will fail. One Court explained this principle as follows:
When an employer becomes aware of misconduct on the part of… [an employee], sufficient to justify… [a just cause] dismissal, he may adopt either of two courses. He may dismiss, or he may overlook the fault…If he retains the… [employee] in his employment for a considerable time after discovering his fault, that is condonation, and he cannot afterwards dismiss for that fault without anything new.1
While the most obvious form of condonation is allowing an employee to remain on the job for a considerable time after the employer discovers that employee’s alleged misconduct, it can also arise in other ways such as where the employer fails to discipline other employees who have engaged in similar conduct. For example, where employee A and B engage in misconduct of a similar nature, and the employer terminates employee A for just cause but allows employee B to remain employed, it is doubtful that the employer’s just cause allegation against employee A will be successful.2
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.