Casual Legal: Navigating employee terminations

DISCLAIMER: This article is meant to provide information to Alberta Municipalities members only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated. This content is not intended for the general public.

By Mitchell R. Hayward
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

There are generally two ways to terminate an employee: "with cause" and "without cause." When an employee is terminated "with cause," the employer is not obligated to provide severance or reasonable notice. Determining whether there is "cause" for termination involves a contextual analysis, with common reasons for a "with cause" dismissal including severe misconduct or incompetence.

The legal test for determining "just cause" is whether the employee’s misconduct is fundamentally incompatible with the continuation of the employment relationship. In other words, the court will evaluate whether the severity and nature of the misconduct justify dismissal as a proportionate response.

In determining whether an employer had "cause" to terminate an employee, courts will evaluate the surrounding circumstances, often considering factors such as:

• The employee’s age, seniority, role, & responsibilities
• The level of trust placed in the employee
• Whether the behavior violates established workplace policies
• Whether the misconduct is a one-time incident or a pattern of repeated offenses
• The impact on coworkers & the work environment
• The effect of the misconduct on the business's reputation
• The employee’s overall work history
• The employee’s disciplinary record, including prior warnings (written or verbal)
• Whether the conduct was deliberate or a result of an innocent mistake.

When contemplating termination for just cause, employers must approach the process with meticulous care, as proving just cause can be challenging. It is crucial to document all aspects of the employee’s behavior, including both formal and informal disciplinary actions such as oral warnings. Keeping detailed employment records, along with documentation of misconduct, complaints, and corrective actions taken, will provide essential evidence if the decision is ever legally questioned. Additionally, employers should conduct thorough investigations, ensuring they have clear written policies outlining when investigations should be initiated and the procedures to follow, and adhere to these policies consistently.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or riskcontrol [at] abmunis.ca (email) to connect with Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.