While just cause is tough to prove (as you'd expect it to be given that it has been described as the "capital punishment" of employment law), it's by no means impossible to prove, despite what some might suggest.
A case in point is the recent Oosterbosch v. FAG Aerospace Inc. where the employer terminated a 53 year old, machine operator with 19 years service based on progressive discipline. The employee had a number of discipline notices on his record. The culminating incident occurred on March 28, 2009 which was described as "unsatisfactory work performance and falsification of records". According to the Court:
It was determined that this incident warranted discipline but no warning was issued because the plaintiff had already accumulated the requisite four warnings to justify termination pursuant to the progressive discipline policy.
The Court summarized the legal principles as follows:
The onus is on the defendant to establish just cause for the termination of the plaintiff’s employment. The standard that the defendant has set is articulated in its progressive discipline policy. Although the plaintiff’s dismissal following receipt of four written warnings within a year complies with that policy it does not necessarily follow that there was justification for his termination in law. Just cause at common law requires proof of misconduct that constitutes a repudiation of the employment relationship
The reason I mention this is that many employers believe that their progressive discipline or performance management policies are determinative of a just cause finding. They aren't. The determination of whether there is just cause requires a contextual analysis (following McKinley v. BC Tel).
Now, here's the rub of the case.
While the Court determined that the employee was terminated for just cause and was not entitled to reasonable notice of termination at common law, the Court nonetheless went on to briefly consider whether the employees' conduct amounted to “wilful misconduct, disobedience or wilful neglect of duty” such that he would be dissentitled to receipt of termination and severance payments under the provisions of the Employment Standards Act, 2000.
The judge in this case held that conduct that might justify a finding of just cause for common law purposes will not necessarily result in a finding of "wilful misconduct, disobedience or wilful neglect of duty" under the Ontario ESA, such that a finding of just cause at common law, would still require a further analysis of whether the conduct meets the ESA test.
In this case, the Court awarded the plaintiff $17,127.33 as termination and severance pay under the ESA.
Employer's take careful note as this case opens up some interesting possibilities for plaintiffs.