KNOW THE LAW Termination With Cause Inna Koldorf is a partner at Miller Thomson LLP in Toronto. Her work includes helping employers with managing their workforce, providing advice, representing employers in litigation, and conducting workplace investigations. The views expressed are those of the author and do not necessarily represent the opinions and official policies of CDA. An employee has broken your trust in a way that can’t be fixed. You care about the workplace environment in your practice and feel that you can’t continue to work with this employee. What do you do? “When an employer terminates a staff member with cause, they need a good reason,” says Inna Koldorf. Like terminations without cause, common law and employment standards legislation provide protections for both employees and employers in cases of misconduct that may require termination with cause. “An employee who is terminated with cause would be terminated for instances of severe misconduct,” says Koldorf. “Misconduct that fundamentally breaches the essential terms of the employment contract or relationship between the parties and renders continued employment impossible.” There is typically a very high threshold for termination with cause, often cases of grave misconduct, such as theft and insubordination. The threshold for “just cause” in termination in common law, as opposed to employment standards legislation, is different. In common law, when an employer has just cause, the employer can dismiss an employee without notice or pay in lieu of notice for serious misconduct. This also applies in instances of less serious misconduct such as negligence, incompetence or conflict of interest, especially if such conduct is repeated. Employment standards legislation in most jurisdictions in Canada contain similar rules to common law, but the legislation in some jurisdictions have a higher threshold for misconduct. “For example, in Ontario, the Employment Standards Act (ESA) specifically states that employees who are guilty of willful misconduct, disobedience, and willful neglect of duty that isn’t trivial and has not been condoned by the employer, are not entitled to notice,” says Koldorf. “When you look at that definition, you see the word ‘willful’ multiple times. The misconduct must be intentional. Negligence and incompetence may not actually be intentional.” 29 Issue 4 | 2025 |
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