An employer maintains the right to terminate an employee’s employment but is required under both the Employment Standards Act and common law to provide appropriate notice or pay in lieu of notice to terminated employees. Notice is not required if the employer terminates an employee within their probationary or if the employer has just cause to terminate the employee. If an employer is terminating within the probationary period they are still required to act in good faith with regards to their interactions with the employee.
Just cause is consider to be misconduct that is irreconcilable or inconsistent with an employee’s employment contract. A determination of if the conduct of an employee is irreconcilable or inconsistent with their employment contract is highly fact driven and will depend upon the exact nature of their contract, the unique nature of their employment, the professional standards related to the employment and the workplace in which the work. Employees who work with children or other vulnerable individuals or employees who have access to significant sensitive information regarding their employer or their employer’s customers will be held to different standards then those employees who do not. Common examples of cause include theft, dishonesty, using of drugs or alcohol in the workplace and assault or harassment of co-workers or supervisors. Insolences, poor performance and/or refusal to comply with employment instructions may amount to cause depending on the nature of the misconduct but it is important to remember that the burden to show that just cause existed rests with the employer and in cases this burden may not be meet. If the employee’s misconduct may not amount to conduct sufficient to fire for cause it is best to ensure that the employee has received clear instructions on their standards of their employment, that the misconduct is addressed with the employee and that the employee is provided a reasonable amount of time to correct the misconduct.
If an employee was not terminated for cause they have the right to pay in lieu or notice and could commence an action for wrongful dismissal. Employees have the option to file a complaint with the Employment Standards Branch for payment of notice as set out in the Employment Standards Act or to file a wrongful dismissal action in Supreme Court.