This article is part of the TwoGreySuits Managing Employee Performance Series and is offered by our partner, TwoGreySuits as a service to our members.

By Megan Burkett, Employment Lawyer (at the request of TwoGreySuits)

An employer can dismiss an employee by providing reasonable notice of termination of an employee’s employment contract, or pay in lieu thereof. In the alternative, an employer can dismiss an employee without reasonable notice or pay in lieu if the employer has just cause to do so. Providing reasonable notice is the most common option, as just cause is an increasingly difficult standard to satisfy. Generally, the court takes a contextual approach in deciding whether the employer dismissed the employee for just cause. The court will determine whether the nature and seriousness of the employee’s conduct can be reconciled with sustaining the employment relationship, or whether the conduct of the employee has made it impossible for the relationship to continue.

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Establishing just cause on the basis of incompetence or poor performance is arguably one of the most difficult grounds to substantiate in court. To establish that an employee should be dismissed for just cause on these grounds, the employer will have to show

• that the employee has, over time, performed below the objective standard of performance expected for the position held by the employee;

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• that the employee has been notified that his or her performance is being questioned, giving the employee the opportunity to address the employer’s concern;

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• the employer must then provide the employee with this opportunity; and

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•  if the performance does not improve, the employee must be provided with a warning that specifically states that failure to improve will result in termination of employment.

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All of these factors would be addressed in a properly drafted progressive discipline policy. It is important for employers to understand that there is a gap between the theory and practice of the law of just cause. Only with this understanding can employers take the steps necessary in attempting to bridge this gap. Employers are urged to put a progressive discipline policy in place. This type of policy imposes increasing levels of discipline and provides employees with an opportunity to improve.

For example, an employer could begin imposing verbal warnings, then written warnings and finally termination. The severity of the incident should justify the level of discipline imposed. The final incident prior to termination, also referred to the culminating incident, should be substantial enough to justify the termination.

Employers should also keep in mind that the progressive discipline policy is meaningless unless it is circulated to and understood by all employees, and adhered to in an efficient and consistent manner. Termination for just cause should only be used in select circumstances where an employee’s behavior or performance clearly meets the standard. It is important to assess each situation and determine whether an employee’s behavior or conduct is enough to satisfy the standard of just cause.

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