Termination of Employment, Notice and Pay in Lieu of Notice

Article No. 10

CAUSE

If an employer terminates an employee its obligation is to provide “notice” or “pay in lieu of notice” except where it can prove cause. Proving “cause” for termination is very difficult and usually reserved for the most egregious situations. Two recent Court decisions show that although cause is difficult to prove, with the right facts a Court will not hesitate to make such a finding. The cases show both a willingness of the Court to find cause in appropriate circumstances, as well as the type of conduct that the Court (and common sense) dictates should not be acceptable. 

In Robertson v. Complex Services Inc., Mr. Robertson was employed with Complex Services Inc. (“Complex Services”), a company which supplies staffing for a provincial casino operator. Mr. Robertson was employed with Complex Services for approximately five years and at termination held the position of Game Supervisor earning approximately $50,000.00 per year.

Mr. Robertson was subject to numerous verbal and written warnings as well as at least three suspensions prior to the final incident. 

On June 6, 2002, Mr. Robertson acted in an insubordinate manner to his immediate supervisor when his supervisor attempted to coach Mr. Robertson. In response to the supervisor’s coaching, Mr. Robertson conducted himself in a rude, vulgar, sexually explicit and disrespectful manner, all of which was done in front of patrons of the casino as well as co-workers. The Court found that Mr. Robertson’s actions were derogatory in nature, that he used sexually explicit and vulgar language and further found that this conduct on its own would warrant termination. Alternatively, the Court indicated that the accumulation of previous warnings plus the most recent event would also constitute grounds for termination. 

In the Court of Queens Bench of Alberta, in the case of R.T. James Whitehouse v. RBC Dominion Securities Inc., Mr. Whitehouse met with a prostitute in his employer’s offices.  The Court also found that Mr. Whitehouse had abandoned the prostitute on the premises where she had access to client and corporate information. The Court also found that Mr. Whitehouse had lied to more senior management the following day when questioned about the incident. The Court found that the above conduct constituted cause and that any perceived tolerance of this kind by the company would negatively impact the employer’s relationship with other employees.

Although cause for termination is not an easy task for an employer to prove, these cases demonstrate that the Courts are not hesitant to find cause where the facts would warrant. It goes without saying that situations where a Court might find cause may also be the type of factual scenario that might offend our own common sensibilities about right and wrong.  

The above cases demonstrate that there are clear situations of conduct by an employee that will warrant a finding of cause. The norm, however, is that unless there is some egregious conduct, “cause” will be extremely difficult to prove and the employee would be entitled to wrongful dismissal damages. It is important for one to understand that the issue of whether cause exists is a matter of fact and law, and every factual situation will be different. If one is in a situation where cause is an issue, it is best to obtain legal advice from an employment lawyer.