One way that an employer can go about proving cause is if the employer is able to prove that the employee is incompetent in their duties. This is a difficult test to meet. The case of Haack v Secure Energy (Drilling Services) Inc, 2021 ABQB 82 looked at these issues, saying at paragraph 416:
[416] Misconduct sufficient to show cause can include incompetence, where the incompetence amounts to a significant breach of the contract by the employee: Lowery v Calgary (City of), 2002 ABCA 237 at para 3. The issue is whether the failings of the employee are such as to prejudice the conduct of the employer’s business: Lowery at para 3, citing with approval Atkinson v Boyd, Phillips and Co Ltd., 1979 CanLII 478 (BC CA). Incompetence sufficient to constitute cause may arise where an employee consistently fails “to meet a reasonable standard of performance” and can include a lack of diligence or negligence: Radio CJVR Ltd. v Schutte, 2009 SKCA 92 at paras 17-18.
[417] An employee provides an implied warranty that they are able to do the job for which they have been hired, and the employee who proves incapable of doing the job gives grounds for their dismissal: Jeewa v Med-Chem Laboratories Ltd., [1998] OJ No 618 (OCJ) at para 35; Matheson v Matheson International Trucks Ltd., [1984] OJ No 306 (HCJ) at para 8.
[418] At the same time, the test for incompetence is an objective one; “It is not enough for the employer to dismiss for what he honestly believes to be just cause; the true test is whether just cause existed”: Matheson v Matheson International Trucks Ltd., [1984] OJ No 306 (HCJ) at para 10. Incompetence does not include an employee failing for reasons beyond that employee’s control: Pelletier v Friesen’s Climate Control Ltd., 2015 ABQB 531 at para 37.
[419] Further, to dismiss an employee for incompetence, the employer must do more than demonstrate that the employee was careless or indifferent. Rather, they must show:
1) The level of job performance that it required and that the level required was communicated to the employee.
2) That it gave suitable instruction to the employee to enable him to meet the standard.
3) That the employee was incapable of meeting the standard.
4) That there had been a warning to the employee that failure to meet the standard would result in his dismissal: Bogden v Purolator Courier Ltd., (1996) 1996 CanLII 10572 (AB QB), 182 AR 216 (QB) at para 59.
[420] Termination for cause brings with it other obligations with which an employer must comply. The employer must investigate to ensure that its impression of the employee’s deficient performance is an accurate one: Luan v ADP Canada Co., 2020 ABQB 387 at paras 110-11; Smith at para 76. The investigation of the employee must be fair: Molloy v EPCOR Utilities Inc., 2015 ABQB 356 at para 248.
[421] As stated by the Ontario Superior Court of Justice:
While there is no obligation on the employer to conduct a particular type of investigation before deciding to dismiss with cause, the onus is clearly on the employer to have regard to all the facts necessary for a full and fair understanding of what occurred. In other words, the employee has no procedural rights in the employer’s investigation, but the employer must make a decision on the basis of all of the relevant facts and considerations: Dziecielski v Lighting Dimensions Inc., 2012 ONSC 1877 at para 35.
[422] The employer must also ensure that termination is a proportionate response to the employee’s misconduct: McKinley v BC Tel, 2001 SCC 38 at para 53; Motta v Davis Wire Industries Ltd., 2019 ABQB 899 at para 14.
Cause, as we have pointed out in numerous articles, is a difficult onus to meet. Employers will rarely meet the onus, although they often attempt to allege cause.
If your employer has fired you and alleged cause against you, please feel free to contact us.
The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.
