Last month, The Advocates' Quarterly published an article by Paul Willetts entitled "Tagg Industries v. Rieder: Is Storing Pornography on a Work-Issued Laptop Cause for Dismissal". The article looks at some of the lessons for employers coming from this case when asserting cause for dismissal. In particular, employers should ensure that: the misconduct relied upon for cause dismissal reflects an irreparable breach of trust; they can prove their assertion of cause (i.e. lead concrete evidence); the reasons for cause are communicated to the employee in a clear and contemporaneous fashion.
Determining what conduct amounts to just cause for dismissal is no easy task. In part this is due to just cause being inherently situation specific. When describing what may constitute just cause, employment lawyers often refer to extreme examples: think of situations where a public-facing employee makes repeated racial slurs to a customer or commits major fraud in the course of their duties. Typically, such facts will prove fertile ground for successful assertions of just cause for dismissal by an employer.
A common question employment lawyers are asked (by both employees and employers) is whether it is legal to make secret recordings while at work. A variety of circumstances may provide the motive for such action. An employee concerned they are being bullied may want to record proof of harassing comments made to them. Likewise, a supervisor may wish to secretly record the contents of a disciplinary meeting to safeguard themselves against future allegations of what was said.
There is a reason that Canadian courts refer to just cause for dismissal as the "capital punishment of employment law." The implications can be grave. If you are fired for just cause, you will likely face a number of problems. These can include your former employer refusing to provide severance, Service Canada denying your application for Employment Insurance ("EI") benefits and potential negative work references while seeking re-employment.