Termination for cause is dismissal without notice is reserved for “wilful misconduct” of employee that is serious enough to be dismissed without warning. Do note that the “wilful misconduct” MUST be job related. So it's not enough if the employee has misconduct of some sort, even if criminal, outside of the workplace.

Termination for Cause – A Good Idea for Employer?

Termination for cause is one of the defence available to employer to justify termination without notice. Do note that it’s extremely rare, according to recent Ontario employment law legal jurisprudence, for the Court to find a case of termination for cause, absent something as serious as stealing from the cashier when the stealing was caught on tape by the surveillance camera.

Generally, where an employer has concerns based on an employee’s performance or even misconduct, the employer must warn or advise the employee of the specific concerns, and that the employer must further provide reasonable opportunity to the employee to change. It is only if no improvement or change is demonstrated after a prolonged period and the presentation of repeated warnings, usually in written form, will an employer be considered whether grounds present for a termination with “just cause”. Since it’s a factual driven determination, preservation of evidence is key in establishing a “just cause” termination.

However, in rare circumstances of wilful misconduct, “just cause” termination can be established much easily. This is especially so if the employee has engaged in activities that are actionable in courts. Examples of such circumstances could include misappropriation of company funds, criminal fraud, a significant breach of client/ customer confidentiality, etc…

So the take home message for employers are that if you want to terminate an employee for cause, DON’T. Just terminate him or her on a without cause basis, give them proper notice or payment in lieu of notice, and DO make sure that the notice is more than that is required under the Employment Standards Act (ESA).

Wrongful Dismissal FAQs

Wrongful Dismissal FAQs:

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