In a nutshell, the answer is yes, if your employer has just cause. If the alleged misconduct rises to the level of cause, you will not be entitled to notice or pay in lieu of notice of your termination. This means you will not receive a severance package.
The standard for just cause is generally a high one. The alleged misconduct would need to be sufficiently serious to trigger a just cause dismissal and often it is quite difficult to meet this standard.
Can my employer terminate me for cause for having criminal charges?
No, not if the basis is just the criminal charges alone and the matters are outside of your employment. While an employer may decide to terminate an employee upon the discovery of criminal charges and can certainly do so without cause, that may not necessarily reach the threshold of just cause. The courts have dealt with the issue and the mere fact that an employee has a criminal charge is not just cause for dismissal on its own.
In Kelly v Linamar Corp., the court found that there was cause to dismiss an employee who had been charged, not yet convicted of, possession of child pornography. Since the employer had built a good reputation in the community and also promoted activities involving youth, the Court found the termination was a reasonable step to preserve their reputation. However, the court held that not every case will automatically amount to just cause.
In another decision, Merritt v. Tigercat Industries, the employee was charged with two counts of sexual assault against minors and the court found that the charges alone were not tantamount to cause. The employer had not conducted an independent investigation and no evidence was provided regarding potential damage to the employer’s reputation. Additionally, the criminal charges were not related to employment or to other employees. The court noted that “criminal charges alone, for matters outside of employment, cannot constitute just cause.”
If you have been terminated from your employment, it is always worthwhile to seek advice from an employment lawyer to assess whether you may be owed entitlements. If you have been accused of misconduct and an investigation is being done by your employer, you do not have to wait until a termination before you seek advice. Often it is how an employee reacts during an investigation that may bolster the employer’s case for just cause dismissal. Discussing the events with a lawyer can assist you with knowing how to properly respond to the investigation.
Employers should be mindful about terminating an employee for cause and should seek advice from an employment lawyer prior to doing so. Wrongfully terminating an employee for cause where none exists can be a costly misstep. An employment lawyer can provide advice on whether the circumstances amount to cause and also guide you through the process of terminating an employee. To arrange for your free confidential 30-minute phone consultation make sure to contact us today.
About the Author: Busayo Faderin is an Employment Lawyer and Senior Associate lawyer at Monkhouse Law where she practices Employment, Human Rights and Disability Insurance Law. Busayo can be reached at firstname.lastname@example.org.