FACT SHEET: Just Cause

Ministry of Labour
Employment Standards Branch
Province of British Columbia

This fact sheet has been prepared for general information purposes. It is not a legal document. Please refer to the Employment Standards Act and Regulation for purposes of interpretation and application of the law.   August 1997

FOR MORE INFORMATION:
Call: 1-800-663-3316, or 660-4000 in Vancouver
Fax: 1-604-775-3509
E-mail: infoesb@system6.lcs.gov.bc.ca
Internet: www.labour.gov.bc.ca

Purpose of this Fact Sheet

The purpose of this fact sheet is to assist parties in understanding the concept of just cause as it applies to compensation for length of service. Section 63(3)(c) of the Employment Standards Act, liability for compensaiton is discharged if the employee is dismissed for just cause. This fact sheet is not a substitute for legal advice. Rather, it is to provide insight into how the Director of Employment Standards interprets just cause.

The Employer's Right to Fire

The Employment Standards Act does not take away an employer's right to dismiss an employee without cause. Instead, it imposes a requirement to provide compensation or notice in lieu of compensation so that the employee either has money or time to prepare for the loss of employment. The Act, in effect, expects employers to communicate to employees their prospects for continued employment. An employer is not required to pay compensation or to provide written notice of termination of employment when an employee is terminated for just cause. The entitlement to compensation is sufficiently important to require more than dissatisfaction to justify depriving an employee of this entitlement.

Just Cause, who must prove it?

The burden, or "onus", is on the employer to show that just cause exists. The employer, therefore, must defend the dismissal decision; it is for the employer to show that the employee's behavior or conduct was so unacceptable that it is cause not only for dismissal, but dismissal without compensation or notice in lieu of compensaiton

What is Just Cause?

There is no rule of law outlining what degree of employee misconduct constitutes just cause. The test for just cause has been set out as follows: Did the employee behave in a manner inconsistent with the continuation of employment?

What is just cause is hard to define because it depends on the nature of the employment, and on the status of the employee. It is unusual for any one incident of misconduct to constitute just cause. While it is accepted that wilful misconduct is just cause, however, there is no generally accepted definition. It is accepted to mean the employee knew what to do and deliberately did not do it, or knew what not to do, and deliberately did it. A mistake, especially if due to inexperience or lack of training, is not considered to be wilful misconduct.

What the Director considers to be Just Cause.

The Director may consider the following to constitute just cause:

• serious wilful misconduct; sexual assault or harassment;
  
• breach of duty;
  
• conflict of interest (especially, if it involves provable loss to the employer);
  
• theft;
  
• serious breach of company rules or practices;
  
• fraud and dishonesty;
  
• chronic absenteeism or tardiness;
  
• serious undermining of the corporate culture;
  
• unsatisfactory performance.
  

Some examples, such as theft, fraud, dishonesty, and conflict of interest, require only one provable incident to justify dismissal without compensation or notice. Others, like poor performance, low productivity, absenteeism or tardiness, usually require an employer to advise the employee of expectations, and the consequence of dismissal for failure to meet expectations.

Progressive Discipline and Just Cause

In determining whether just cause exists, the Director will consider the concept of progressive discipline. Progressive discipline involves attempts by employers to correct unsatisfactory performance. Simple dissatisfaction with performance is not just cause. When an employee is being let go because of unsatisfactory performance, then the Director expects employers to meet the following criteria in order to show just cause:

• the employer made the employee aware of the objective standard of performance expected of the employee; (the employer has the right to determine how the business will be conducted and can adopt any procedure as long as it is not unlawful, dishonest, or unsafe, and is within the ability of the employee to perform);
  
• in the event the employee failed to meet this standard, the employer has made reasonable efforts to assist (by training or otherwise) the employee to achieve the expected performance standards;
  
• the employee despite the employer's reasonable efforts to assist, fails to meet acceptable standards of performance; and,
  
• finally, and most importantly, the employer specifically told the employee that continued failure to perform to acceptable standards of performance would result in dismissal.
  

The employer has to show that the employee was warned of performance problems and that dismisaal was the outcome for failure to meet reasonable performance standards.
Employees who fail to respond to progressive discipline may be terminated for just cause. The termination must relate to the matters which gave rise to the progressive discipline. The employer must prove that there has been a proper application of progressive discipline procedures.