Clarifying behaviour that would lead to just cause

For terminated non-union employees, just cause is an important issue.  It has nothing to do with whether the employer is allowed to fire you…they don’t need a good reason, or any reason at all.  It is key, however, to whether or not the employee gets a severance package. 
If there is just cause for your termination, you get nothing but your last pay cheque.  If there is not just cause, you will receive the minimum termination entitlements required by the Employment Standards Act, as well as pay in lieu of reasonable notice that is awarded by the courts based on your age, seniority and level of responsibility. 
Confusion as to what is and is not just cause abounds with employees and employers. 
At its simplest, just cause is behaviour that is so severe, it destroys, in the eyes of a rational observer, the possibility of an ongoing employment relationship.  
A judge must be convinced that no lesser disciplinary action, like a warning letter or suspension without pay, was the more appropriate response. 
The more seniority an employee has, the more they can get away with before just cause exists.
Just cause is: stealing from your employer, lying about a serious matter, competing with your employer or repeatedly being abusive of another employee in a severe way.  This list is not exhaustive.
Just cause is not: failing to meet your sales quota, even repeatedly.  It is not having your second safety violation in 18 years of loyal service, unless it was so severe you imminently endangered your safety or the safety of others in a careless way. 
Just cause is not spending an hour a day on the internet doing personal business when you are a salaried employee who routinely works extra hours without compensation.  Without a warning that the behavior has to change, it’s not even just cause if you are an hourly employee.
Some employers believe that if they create enough paperwork and warning letters, no matter how insignificant the infraction, they can establish just cause and save themselves a severance package payout.
But an employee of 8 years’ duration with no significant absenteeism record will not have just cause for her termination just because she was in late 4 times within the span of a month, even though she was warned the second and third time that a recurrence would result in her termination.
The difficulty in establishing just cause is especially frustrating for employers trying to deal with a consistent under- performer.  You have a twelve year employee whose attitude and production have been on the decline for the last six months. You sat down with them and shared your concerns. Nothing changed. You gave them a warning letter itemizing the deficiencies clearly and warned them that if things did not improve they would be terminated. Although they show up every day and on time and appear to be working, they continue to whine and complain about everyone else and increasingly do not complete their tasks on time and without errors.
Don’t kill the messenger but you still do not have just cause. You might as well face the inevitable, let them go and pay the piper.
Ultimately, the onus is on the employer to prove just cause.  It is not up to the employee to disprove it.  Whether one thinks it is fair or not, judges give the benefit of the doubt to the employee.  They will look for behavior that is clear and willful or so reckless that it might as well be willful, before just cause will be found. 
As published in The Hamilton Spectator, October 17, 2011
Ed Canning
Ed Canning
P: 905.572.5809