CHAUDHRI: Alleging cause requires hard evidence

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A termination for cause is not a slap on the wrist. It is the pinnacle of punishment for an employee. And because it is rarely carried out appropriately, when cause cases turn up in courts, many of us in the employment bar take notice.

A termination for cause usually happens when an employer is fed up after ongoing performance issues, major lapses in judgment or serious misconduct. The misconduct must be willful and not trivial. It is the most severe penalty an employee can receive. Most often, perks and pay cease the day a termination for cause takes place.

Even if misconduct rises to the legal threshold of cause, it must be well documented and well supported by evidence. An employer needs receipts.

And today I tell you a story of an employer that had the bones of a good cause case but did not have the evidence to back it up.

An equipment company that I will refer to as “Tractor” terminated an employee who I will call “Shawn.” Tractor terminated him after various incidents including crashing the company truck, members of the public complaining about his driving and an incident where Shawn injured himself at least once.

Even the trial judge noted that Shawn “never made it easy for himself.”

Ultimately, Tractor terminated Shawn for cause in September, 2021 after it received a customer complaint about Shawn’s alleged unprofessionalism including pressuring said customer to initial a sales agreement and that Shawn tried to call the customer eight times that day to close the sale. Shawn had 18 years of service when he was fired.

At trial earlier this year, Justice Akazaki heard evidence from the manager who spoke to the disgruntled customer. But, the disgruntled customer was never called as a witness.

While the judge accepted the manager’s evidence that the customer complained, the judge could not go so far to accept that the complaint itself was objective or reasonable. After all, customer complaints are not made under oath and could be inaccurate, unfair or embellished.

Because the customer was not called as a witness, the nature of the complaint, as the manager relayed it to the court, was hearsay.

The fact a customer complaint happened, with nothing more, did not meet the threshold of cause.

The court found no cause and awarded Shawn 17 months of pay in reasonable notice. Notably, even though there was evidence that Shawn accepted a lower paying driving job after termination, the court did not deduct that income from his damages award.

There are a few practical takeaways from this case. The first is that cause is complicated. This employer had a problematic employee that the court readily acknowledged. But even a consistently reckless, unprofessional and under performing employee may not have breached his duties to an employer in a legal sense.

Further to that, evidence is technical. Second hand accounts of poor behavior will not pass muster in a court of law. If the best evidence (like a witness) is missing, a court will not overlook the glaring omission.

Most lawyers would not be surprised that this termination for cause was not upheld by the court. A punishment so severe was simply disproportionate in light of the evidence at hand.

Have a workplace question? Email me at sunira@worklylaw.com and your question may be featured in a future column.

The content of this article is general information only and is not legal advice.

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