What Is Involved When An Employee Is Terminated For Cause.

Terminating employment with cause is a difficult threshold for the employer to meet.

Typically, there are two types of cause. One is the case of serious employee misconduct such as theft or fraud or assaulting a co-worker where the conduct is so serious that the employer is entitled to summarily dismiss the employee without notice. The other category is more performance based, where there are issues with respect to an individual’s performance. In that instance, an employer has to be very careful to show that efforts have been made to identify the performance issues in a very specific way so that the individual can understand what the issues are. The individual must be given the opportunity to improve on those areas and is specifically warned that failure to improve could result in discipline and possibly dismissal without further notice. To succeed an employee must show the individual was given a very clear understanding of the employer’s expectations and a reasonable opportunity within which to meet those expectations.

Sometimes, the employer’s expectations may be unrealistic or the objectives that they are setting unachievable. When an employee is faced with this kind of a process, it would be wise to get legal advice. You may sense that something is up, you may be right that it is the beginning of the end. If an employee gets counsel, counsel can coach them through it. For example, your employer may have made allegations against you of poor performance and you are asked to sign a document, acknowledging that there are issues, and are given a three month period to meet objectives. But you feel the expectations are unrealistic or that some of the issues raised have nothing to do with your job. Maybe you have not been given the support or don’t have the required training. There could be a variety of reasons why things are not happening the way the employer wants them to happen.

On those occasions, I typically coach from the sidelines and will advise you to sign the document. In my experience, employers get very defensive when they are trying to control a process and they feel that the employee is not cooperative. But I will also advise that you prepare a response and attach it to the employer’s document. In your response you state why you feel the issues that are being raised are inaccurate, or that you could improve upon these areas if you had more support. By doing this you provide a balanced record of what is going on in the work place. The employer will often realize that you have hired counsel and so instead of going through the exercise of building a case against you, they will look at ending your employment with a package.

Most cases like this are settled. In fact most of them don’t even get to litigation. A lot are resolved by way of negotiation between the counsel for the employee and counsel for the employer.

If you, or someone you care about, is dealing with employment law issues in the Waterloo Region, contact the Law Office of Morrison Reist.

This article is taken from an April 17, 2008 interview with Melanie Reist, Employment Lawyer at Morrison Reist Barristers & Solicitors, an Kitchener, Ontario Employment Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.