This is the second in a series of blog posts about just cause terminations. Here’s the first blog (introducing the concept). In this blog, I’ll be discussing additional important concepts, like: what happens if an employer condones bad behaviour that amounts to just cause termination? Who has to prove that the employee was terminated for just cause / unjustly? Is it the dentist employer or the employee? And what standard do they need to prove it in order to succeed?
Condoning Bad Behaviour
Let’s assume the employee is behaving badly enough to justify the employer terminate them immediately for Just Cause. But then the employer doesn’t do anything. They remain silent, ignore the bad behaviour, let it slide, etc. And then EVENTUALLY the employer terminates the employee for just cause.
So now the employee wants to argue that they should have been entitled to reasonable notice (at common law) or statutory notice (under the Employment Standards Act, 2000). The employee goes to court and argues that the employer had REAL and ACTUAL KNOWLEDGE of the employee’s conduct which warranted a just cause termination but let it slide. If the Court agrees, then the employer will have been found to EXCUSE the bad behaviour and would not be entitled to rely on that specific behaviour to terminate the employee for just cause.
Burden and Onus of Proof
When it comes to who has to prove what, and to what extent do they have to prove it, David Harris wrote the following in his text “Wrongful Dismissal” at page 29:
- It is a firm principle of common law that the onus rests upon the employer to prove the existence of just cause, an onus that must be demonstrated beyond the balance of probabilities: Warren v. Super Drug Markets Ltd. (1965), 53 W.W.R. 25; Jeykal v. Nova Scotia Glass Co. (1888), 20 N.S.R. 388; Place v. Miller Electronics Ltd. (1977) 2 A.C.W.S. 80.
And in the more recent case of Partridge v. Botony Dental Corporation, 2015 ONSC 343, the Ontario Superior Court of Justice reiterated this onus and burden of proof:
- 25 The onus is on the employer to establish, on the balance of probabilities and on an objective basis, that cause existed for the employee’s discharge.
So you see: it’s up to an employer to show (i.e. they have the burden of proof) that the employee’s conduct warranted a just cause termination. And they have to show that on a ‘balance of probabilities’, which means at least 51% probable that it occurred. This threshold isn’t that hard to meet: a judge or Court must simply side with the employer more so than with the employee. A judge must decide whether an objective third party reasonable person would consider the employee’s conduct to be so egregious so as to warrant an immediate termination.
A Word on Progressive Discipline
It may be a good idea for dentist employers to progressively discipline their employees over time, with punishments being more severe than previous ones and leaving just cause termination to the end. This is good for a number of reasons. First, if it’s well documented, it helps build the employer’s case that a just cause termination was warranted. It helps aggregate all the bad behaviour – each of which may not justify a Just Cause Termination but together might! Second, it allows an employer to prove that they had to terminate the employee because they had maxed out all other types of discipline or sanctions over a period of time and to no avail. Third, an employer can prove that they warned / notified employees all along about the consequences of their misconduct or incompetence. Finally, an employer can use progressive discipline to say that they never CONDONED bad behaviour.
Finally, documentation is so important for so many reasons. Occurrences of bad behaviour, progressive discipline, etc. should be well documented and recorded in a staff’s file. Remember: the employer needs to prove, on a balance of probabilities, that an employee was terminated for Just Cause. Going one step further: an employer should get an employee to sign an acknowledgment (if possible in the circumstances) which outlines the warnings they received for their inappropriate conduct. I’m sure this will put the fear of God into the employees’ minds. But it will help build a case for Just Cause termination.