Employers have the right to terminate employees without cause during a probationary period; and they have the right to terminate employees by providing reasonable notice of the termination, or pay in lieu of reasonable notice, often referred to as “severance pay” . However, if the employer has “just cause”, they can fire you without notice. So, what is just cause? Hint, “it depends!”

Generally, misconduct must be serious. Acts of theft, potentially including time theft, and dishonesty will justify an immediate dismissal, as may acts of insolence or insubordination. A failure to comply with work orders or work rules may justify immediate dismissal if the rules were known to the employee, consistently enforced, within the scope of the employment contract, and lawful and reasonable; and further, the employee must have been aware that dismissal was the consequence for a failure to comply.

In order to justify a just cause dismissal for less serious misconduct, typically there must be both clear warnings and progressive discipline before an employee can be summarily dismissed. Often employers are more likely to dismiss without cause over less serious misconduct. Amongst other things, chronic absences and chronic tardiness can be considered misconduct, especially if they aren’t condoned by the employer.

Similarly, it is difficult for an employer to justify a dismissal based on unsatisfactory work performance. The courts require proof of substantively serious incompetence to accept unsatisfactory work performance as immediate just cause. Rather, the employer must identify the areas of dissatisfaction by providing objective standards of performance, provide opportunities for improvement (and arguably training, coaching, or mentoring), and provide clear warnings that a failure to improve will result in termination.

Returning to chronic absences, the law surrounding dismissal for chronic illness is difficult. Generally, it’s not an issue of misconduct but whether the chronic illness “frustrates” the employment contract, basically making the contract void. However, whether the chronic illness frustrates the contract depends on a variety of factors including the chronicity of the illness, the frequency of absences, and the importance of the job.

The issue of “just cause” is complicated; there are other scenarios not covered in this article, and judging the seriousness of misconduct is difficult. If you’ve been fired and your employer is alleging just cause, you should seek legal advice. Our lawyers are here to help!