September 26, 2023

Does No Warning Mean No Just Cause

What happens when you want to end someone’s employment in a hurry? When you realize that their performance is simply no longer satisfactory, and things have gotten to the point where the only thing that you can do is send them out the door? 

There are effectively two ways to end an employee’s employment in Ontario. The most common is a termination without cause, where the employee is provided with adequate notice of termination, or more commonly pay in lieu of notice. While this may be a standard process, and is usually the simplest method of termination, the last thing most aggrieved employers want to do is spend another penny on a bad employee. 

The other option is termination with cause, or ‘just cause’ as it is sometimes known, which at its root is intended to send an employee home empty handed on account of their bad behaviour. Just cause is the capital punishment of employment law and may be the right answer in some extreme circumstances.
Yet a successful termination for just cause can be tricky to substantiate, and can often involve many steps. A recent court decision from New Brunswick serves as a strong reminder that if the right measures are not taken, that cause argument can ultimately fail.

The Facts

In Cumberland v. Maritime College of Forest Technology, 2023 NBKB 65, the Plaintiff, Mr. Cumberland was employed as an instructor at the defendant college between 2012 and 2019. He argued that “his dismissal was done in a vindictive manner, and the reasons relied upon by the College for the dismissal were not shared with him prior to his termination.” 

Five years into his employment, a new Executive Director of the college was hired to Mr. Cumberland’s displeasure. The next year Mr. Cumberland had applied for a promotion as an Academic Chair, and he was even more upset that a colleague was chosen instead of him despite feeling that he was the most qualified for the position. 

The work environment turned toxic, and it began to impact the student experience as well. The new Academic Chair noted multiple complaints received from students about Mr. Cumberland’s conduct. These included complaints about how students were being treated, undermining colleagues, and other heavy-handed behaviours. 

Mr. Cumberland was, to put it simply, a stickler for the rules. While students were expected to operate by a rulebook, Mr. Cumberland enforced it strictly, such as physically removing students’ hats that were prohibited in class, or manually adjusting clocks in the classroom to hold firm on his expectation of punctuality. 

However, the College made one crucial error. As difficulties mounted, the internal leadership team decided by the Christmas break in 2018 that Mr. Cumberland’s employment should be terminated. However, not wanting to upset the academic year, they held off on the termination until June 2019 (the matter was noted as a discussion point at a Board of Governors meeting that April). 

Mr. Cumberland was terminated for cause that June. Despite running briefly as a political candidate in the 2019 elections, he did not secure full-time reemployment within his industry until nearly 3 years later. 

Why Wait?

There is no question that the employer found Mr. Cumberland’s heavy-handed approach inappropriate, and the evidence suggests that Mr. Cumberland was severely unhappy with the management at the College and the direction that they were taking the program. There were numerous complaints made against Mr. Cumberland, and management was aware of these issues.

So why did they choose to wait before proceeding with a just cause dismissal?

Mr. Cumberland’s position was that he was dismissed because of his views on certain elements of the industry, which he felt were contrary to the views of the employer. However, his position was that the employer could not rely on his alleged misconduct as a justification for just cause when he had received no formal warnings or discipline prior to his termination. The employer alleged that he was well aware of the complaints made against him and that his scientific views were irrelevant to their decision. 

The Court reviewed a number of the complaints students had made against Mr. Cumberland, as well as potential issues about some of the public stands that he took suggesting interference in federal science initiatives. All of which suggest that Mr. Cumberland is, as the Court described him, a “rigid individual,” and that his posture ultimately led to a breakdown in his employment relationship. 
The evidence indicated that because Mr. Cumberland’s managers had such a poor experience dealing with him, they held off on issuing any progressive discipline until deciding to dismiss him. The Court, however, ruled that this is not how just cause works. If an employer fails to actively manage performance, it will be found to have condoned the alleged performance issues and precluded from dismissing the employee for an act at some later date.

There were additional cases that supported this position as well. In another New Brunswick case, Jardine v. Phoenix Petroleum Ltd., 2021 NBQB 94, the Court ruled that “the law on wrongful dismissal in Canada is clear that for an employer to satisfy its burden of proving that it has dismissed an employee for cause it must demonstrate that it has employed a system of progressive discipline leading up to the dismissal unless a single incident is so egregious that it warrants summary dismissal.”

In other words, save for the most extreme unexpected incidents that feature wilful disobedience or misconduct, an employer will struggle to build an effective case with no prior discipline or warnings. A pattern of behaviour may lead to just cause for dismissal given the circumstances, but this is difficult to substantiate without the employee receiving any prior notice or warnings.
Ultimately the Court ruled that while Mr. Cumberland’s termination may have been justified, it was not for just cause, and he was awarded 7 months’ pay in lieu of notice. While the Court noted that the employer may have been ‘sloppy’ in their manner of dismissal, it was not a case for moral, aggravated, or punitive damages.

The Upshot

The warning for employers in this case is crystal clear – don’t wait! The old expression “hire slow and fire fast” is not always accurate, but in this case, acting quicker on the decision could have saved the employer a significant amount of time, stress, and potentially even money. 

A termination without cause can happen at practically any time, but a termination with cause should be deliberate, and well thought-out before taking sudden action. If you are looking to terminate an employee based on a pattern of behaviour, connect with your employment lawyer first to ensure that you have put all the right steps in place to make that termination as ironclad as possible. Contact us today to set up a consultation.