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".
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.
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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