An important aspect of employment law in general, and with respect to employment litigation in particular, is the concept of “cause” for termination. When an employer terminates an employee for “cause” or “just cause” it, means that the employee has engaged in conduct that justifies immediate dismissal without notice or severance pay in lieu of notice. Absent an allegation of “just cause” and employer needs to provide an employee who they terminate with proper notice or pay in lieu of notice. In this latter case, the employee is said to be terminated “without cause”.
While most people are familiar, if only generally, with the concept of having employment terminated “for cause” or “without cause”, most people are not familiar with the concept of “after-acquired cause” and how something that only becomes known to an employer after an employee’s position is terminated can still count as a cause of the reason that termination occurred.
What is “Cause”?
In British Columbia, “cause” for termination typically refers to serious misconduct or failure to meet contractual obligations that has not been condoned by the employer. Common examples of “cause” include:
- Violence
- Absenteeism
- Theft
- Fraud
- Violating Workplace Policies
- Misconduct
- Insubordination
- Workplace Harassment
- Gross Negligence.
The burden of proof lies with the employer, who must demonstrate that the employee’s actions warranted the termination. Failure to do so can result in wrongful dismissal claims.
Generally speaking, there are two types of “cause”. These are “Just Cause”, where there is a clear instance or instances where an employee’s behaviour calls for and justifies termination of employment. The other type of cause is “After Acquired Cause” which refers to situations where the employer has acquired knowledge of an employee’s misconduct that may not have been known to the employer and as such not immediately acted upon. The employer’s delay in addressing the issue can influence the assessment of whether termination for cause is justified.
After-acquired cause is unique in that it is acquired cause that the employer only becomes aware of after termination. While it may seem unfair that a termination of employment could be justified by something only discovered after the fact, that is indeed the current state of the law.
What Is “After-Acquired Cause”?
Misconduct discovered by an employer after the termination of an employee can be used as a defence to wrongful dismissal claims. The rationale for this is that just because the employer became aware of the conduct post-termination, does not invalidate the conduct as grounds for dismissal. In order to do so, the employer needs to prove on a balance of probabilities that at the time of dismissal there was sufficient reason to terminate the employees’ position for cause.
Considerations for claims of after-acquired cause are:
- Proportionality – the allegations of after-acquired cause must be a conduct significant enough to justify termination. If other disciplinary measures were available and more appropriate the defence to a wrongful dismissal claim of after-acquired cause could fail.
- Implied Condonation – an employer’s actions can imply condonation of the conduct that is post-termination alleged to be grounds for after-acquired cause. As such, once an employer becomes aware of an employee’s misconduct, they must act promptly. Delayed action may undermine the claim of acquired cause.
- Expressed Condonation – if an employer expressly condones conduct, they will unlikely be able to rely on that conduct post-termination as a basis for after-acquired cause. In most cases express condonation takes the form of an employer being aware of the employees conduct yet taking no disciplinary action against the employee or moving to terminate employment on the basis of that conduct. In such cases an employer cannot then seek to rely on that same conduct to support a defence against a wrongful dismissal claim.
Experienced Employment Lawyers
Whether you are defending against a case of wrongful dismissal on the basis of after-acquired cause or are pursuing a case of wrongful dismissal and are being met with arguments of after-acquired cause, this is an area of law which is not as straight-forward as it may appear and requires the careful analysis of an experienced employment lawyer. Often, by the time lawyers get involved the employer (usually via an HR representative) or employee have already put in writing evidence that will significantly impact any claim or defence available. As such, it is always advisable to contact an experienced employment lawyer once you realize a legal issue has materialized and before communicating with the other side.
The experienced employment lawyers at Taylor & Blair LLP can assist both employers and employees with their legal issues relating to wrongful dismissal claims and claims of after-acquired cause. Contact the lawyers at Taylor & Blair LLP today to schedule a consultation about your legal matter.