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News and Discussions on Payroll, HR & Employment Law

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reasons for dismissal

Employers may be able to rely upon after-acquired cause

Although I have been known to reassure employers that “just cause is not a lost cause”, it is fair to say that the threshold for establishing that summary dismissal is warranted is a difficult one to meet in most circumstances. One question that often arises is what an employer is to do when they only learned of reasons for dismissal after the dismissal has already taken place. This can occur in situations where an employee was dismissed on a without cause basis, or in situations where the termination was for cause. Either way, the issue is what an employer can do with subsequently obtained information, which is typically referred to as “after-acquired cause”.

 

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Duty to fairly and thoroughly investigate alleged misconduct before taking disciplinary action

One aspect of the law relating to termination of employment that has developed in recent years is the obligation of an employer to fairly and thoroughly investigate alleged misconduct before taking disciplinary action. Several decisions over the past few years have made it clear that if an employer fails to investigate, or fails to investigate properly, before dismissing an employee for cause, they are likely to face damages for wrongful dismissal, as well as extraordinary damages relating to the matter of dismissal and the impact on the employee.

 

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Termination of a probationary employee was neither arbitrary nor discriminatory

The Ontario Superior Court of Justice Divisional Court just quashed the grievance settlement board’s decision that a probationary employee’s termination was arbitrary and discriminatory and granted the application for judicial review. The evidence was clear that the employer’s decision to terminate the probationary employee was neither arbitrary nor discriminatory. In fact, the decision to terminate came after numerous reviews of the employee’s work and conversations about performance concerns.

 

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Does an employee have the common law right to procedural fairness in the manner of their termination

It is assumed by most H.R. professionals that employees are entitled to procedural fairness and, in particular, to be advised as to the reasons for dismissal from employment. In fact, there is no such right in private companies. Employees in private companies (i.e. non-governmental entities) have no common law right of procedural fairness in the manner of their termination, whether the termination is for cause or not. Similarly, employees have no legal right to an opportunity to respond to the alleged reasons for dismissal.

 

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Dismissing an employee for cause – are reasons required?

The question of whether an employer should give reasons at the time of dismissal is an important one in employment law…

 

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