A common question I am often asked is whether an employer can terminate an employee for cause who just is not doing a good job. Terminating for cause rather than without cause carries with it the significant savings of not having to provide a severance package. Our courts have held that there are very limited circumstances where you can terminate for cause, recognizing that work is integral to a person’s life. The courts have held that you can terminate for cause in circumstances of incompetence or breach of policy but only where the following has occurred:
- The employee must be aware of the company’s policies and the employer’s performance expectations;
- The employee’s performance deficiencies must have been pointed out to him or her;
- The employee must have had the necessary support to correct those deficiencies and achieve the performance goals set;
- The employee must have had the benefit of a reasonable period of time to correct their performance; and
- The employee must have been advised of the risk of dismissal if his performance has not improved.
The Courts are slow to find just cause and this is particularly so in circumstances where the termination is being justified on the basis of dissatisfaction with performance of duties. A clear performance improvement plan must be put in place along with supports for the employee to improve performance and ongoing monitoring throughout the performance improvement plan. As well, unless the performance problems relate to a substantive duty, a court will not likely find there to be just cause.
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