Risks of Employer Inaction when Dealing with Employee Misconduct

Many employers have the impression that when an employee is fired without cause, despite the existence of just cause, there is no turning back from their initial position once the employee starts a wrongful dismissal claim.

On the contrary, the law says that if there is pre-existing cause to justify a summary dismissal, the fact that the employer gave an “improper” or different reason for termination does not stop them from subsequently relying on pre-existing cause for dismissal. The British Columbia Court of Appeal has unequivocally stated that “an employer may dismiss an employee, giving the wrong reasons, provided that causes which would justify dismissal did in fact exist at the time”: Carr v. Fama Holdings Ltd., (1990) 63 D.L.R. (4th) 25 (B.C.C.A.).

More recently, however, the courts have warned that if an employer was aware of the “new” grounds to terminate at the time of dismissal but did not rely on them, the employer may be considered to have condoned the employee’s misconduct: Nicholls v. Columbia Taping Tools Ltd., 2013 BCSC 2201 at para. 190 citing Nishina v. Azuma Foods (Canada) Co., Ltd., 2010 BCSC 502. Accordingly, the longer an employer allows an employee’s misconduct to continue without warning or discipline, the harder it becomes for the employer to demonstrate just cause in the face of a wrongful dismissal claim.

In other words, communication is key. Employers must ensure that they provide adequate warning, verbally and in writing, to an employee when he or she fails to meet the objective standards of performance or the appropriate standards of behaviour in the workplace. In the absence of taking such precautionary steps, employers run the risk of fighting an uphill battle when trying to justify termination for cause in court.

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