Just cause dismissals

There is an interesting debate going on in the Edmonton Journal over the concept of just cause dismissals. Loosely, the doctrine of just cause says that employers who terminate the employment of a worker must provide reasonable notice (or pay in lieu of reasonable notice) unless the worker has done something so terrible that it is irreconcilable or inconsistent with continued employment and thus warrants immediate termination.

So if your employer catches you stealing, the employer knows you can no longer be trusted and out the door you go. On the other hand, if you make a mistake that isn't fatal to a continuing employment relationship, the employer must discharge you with notice or work with you to correct the error (a progressive discipline approach). Repeated failures to address the issue might then lead to a just cause termination.

Employer-side lawyer Howard Levitt, in an article originally printed in the Financial Post, suggests that the requirement that employers have just cause for terminating an employee is troublesome:

"The just cause requirement is one way unions erode the employer's control over the workplace. In a non-unionized workplace, the employee could be fired without any doubt or appeal. If there wasn't just cause for his dismissal, he would only receive severance pay."

This is partly correct. In a non-unionized workplace, an employee who has done something objectionable (but which does not meet the just cause standard) might well get let go with notice (or pay in lieu). More likely, though, the employer would simply fire the worker. If the termination was without cause and if the worker sought assistance through a provincial employment standards processes, the employer might well be on the hook for a few weeks of pay.

A worker with more resources might sue for wrongful dismissal and may, after a lengthy court battle, get a more generous settlement. But most of that will go to their lawyer. In effect, most workers under a common law contract of employment have few realizable rights in the event that an employer wants to terminate them--no matter how arbitrary or unfair the termination was.

Because of this (and other) examples of the power imbalance in employment, many workers have chosen to join unions and bargaining collectively. A significant difference between union and non-unionized employment is that, with a union, the remedy for an unjust termination is reinstatement (with backpay) rather than pay in lieu of notice.

This does, certainly, limit the employer's control over the workplace--arbitrary and unfair behaviour by the employer which significantly damages the worker is remediated more fully. Indeed, the threat of a meaningful remedy can well compel employers to act more carefully. This is the crux of the Alberta Federation of Labour's response.

The strategies Levitt suggests for handling just cause dismissal (when maybe the case isn't entirely open and shut) in unionized workplaces provide fascinating insight into the political economy of employment. He encourages employers to attempt to trap employees into conflicting statements of responsibility so as to undermine their credibility. He suggests carefully recording common and minor errors to create a pattern of misconduct to present to the arbitrator. And he suggests suspending a worker without pay so the worker starts to feel the pinch (and may even have found another job) and is thus more likely to accept a termination package.

None of these tactics is illegal. And they are all a rational way for an employer to advance its economic interests. That they come at the expense of the employee elicits no comment or consideration. Perhaps this lack of regard for the interests of workers is why workers often seek protection of a union?

-- Bob Barnetson