In order to claim just cause for dismissal, without notice, an employer must be able to prove that the employee's conduct was serious enough to make it incompatible with his or her duties or continued employment.
As an employee, it is your responsibility to make sure that you are not being wrongfully dismissed for any of the following. If you are dismissed for any of these, you will be faced with much difficulty in finding suitable employment.
Note: Criminal or regulatory charges against an employee are not in all cases grounds for dismissal. Also, seeking new employment do not constitute grounds for dismissal for just cause.
Although incompetence is considered a just cause for dismissal, it will prove difficult for an employer to dismiss an employee solely for incompetence. If brought before the courts, the employer would have a difficult time justifying why an employee who was considered competent enough to be hired was now being dismissed for incompetence.
Competency implies that "all employees are engaged subject to an implied warranty that they are reasonably competent for the work for which they are employed" (Associate Chief Justice Parker, 1984). Therefore, doing one's job to the "best of one's ability", would fail to meet this test of competency.
For incompetency to be allowed by the courts, as a just cause for dismissal, it will need to be coupled with another more severe cause for dismissal.
(a) Insubordination(b) Insolence
Insubordination (disobedience) "includes any refusal of an employee to follow instructions, and any other conduct of the employee that constitutes a challenge to persons in authority or their policies" (Wrongful Dismissal Handbook, 4.3(b)(i)).
Insolence refers to an employee's derisive, contemptuous and/or abusive language., usually directed at a supervisor or management. however, not all acts of insolence will constitute grounds for just cause for dismissal. In cases of insolence it is necessary to examine the complete context in which the insolence occurred taking into consideration the characteristics and circumstances of both the employer and employee.
Note: Insubordination and insolence are not equivalents; they are two separate misconducts with insubordination (disobedience) being more clear-cut and inherently the more serious of the two.
In considering whether absenteeism and lateness constitute just cause for dismissal it will be necessary to also take into consideration the complete context together with the circumstances and characteristics of the employer and the employee, before a decision can be made.
Short and long-term illness and disability can be grounds for dismissal but this can prove to be very complex cases when challenged in court.
An employee, being intoxicated while at work, constitutes a serious breach of the employment contract. However, in considering whether intoxication and/or addiction constitute just cause for dismissal it will be necessary to take into consideration all the factors together with the circumstances and characteristics of the employer and the employee, before a decision can be made.
The law requires that a distinction to be made between intoxication resulting from an addiction to drugs and alcohol, and intoxication unrelated to addiction. Therefore, in order to dismiss for just cause, the employer should to be carefully investigated the case to assess the severity of the breach of the employment contract.
Dishonesty covers not only theft or fraud but also varies types of conduct that are untrustworthy. The various types of dishonest conduct can constitute just cause for dismissal when the misconduct is serious and is "inconsistent with the terms of employment, and/or such that the employment relationship becomes irretrievably damaged. The employee however, must be given the opportunity to respond to any accusations.
Sexual harassment of an employee, especially by a supervisor or manager, is reprehensible conduct, which constitutes a breach of trust and abuse of power. An allegation of sexual harassment, once substantiated, is just cause for dismissal of an employee or supervisor without notice, or, payment instead of notice.
However, except in the more serious cases involving sexual assault, the employer has to show that there was a warning system in place, and that the employee was given an opportunity to respond to the allegations, before summary dismissal can be warranted.
Also, in addition to statutory provisions, all provinces have passed human rights legislation which, explicitly and implicitly, prohibits sexual harassment in the workplace.
Certain types of criminal, immoral or improper conduct, are also grounds for just cause dismissals. In considering whether a particular act of misconduct will constitute "just cause", the employer would need to take into consideration the complete context including the characteristics and circumstances of the employer and employee
In these situations certain employee conduct, while not being intrinsically unlawful or improper, would be incompatible with maintenance of the employment relationship. In these cases it will be necessary for the employer to consider the complete context in which the conduct occurred, taking into consideration the characteristics and circumstances of the employer and employee.
These cases would cover those unusual situations in which external events can result in frustration of the contract.
Conflict of interest situations can occur if an employee's activity, investment or interests competes/conflicts unfavourably with the employer's interests.