Just cause is a difficult standard for employers to meet. In
most cases, employees who are terminated from employment will be
entitled to notice or pay in lieu of notice. However, there are
circumstances where the courts will find that dismissal for cause
is warranted, as illustrated in a recent decision of the Ontario
Court of Appeal, Agostino v Gary Bean Securities
The Plaintiff had been employed with Gary Bean Securities for
approximately four years in the role of an investment advisor. The
employer had not been pleased with the Plaintiff's performance
due to a high level of errors. Ultimately his employment was
terminated after he made unauthorized trades on behalf of a client
without the client's permission, and also made representations
to the client and to his employer that he knew were false.
The trial judge found that given his role as an investment
advisor in a heavily regulated industry, honesty was fundamental to
his position. Although dishonesty does not automatically translate
into cause for dismissal, in this context it did. The trial judge
found that trust is the foundation for the investment advisor's
relationship and that the Plaintiff's actions in conducting
unauthorized trades and making misrepresentations shook that
foundation to the core.
The Court of Appeal upheld the trial judge's decision. The
Court noted that there is no legal principle that requires
progressive discipline in every case. In this case, it found that
the trial judge considered whether progressive discipline was
appropriate but in the circumstances determined that the
Plaintiff's dishonesty warranted dismissal for cause, not a
lesser form of discipline.
Just cause is a very high standard. In this case, the nature of
the Plaintiff's position was integral to the Court's
determination that just cause existed. In most cases where there is
an issue with an employee's performance or conduct, the
employer will need to provide the employee with warnings and
opportunities to correct the behaviour. It is important that
managers are proactive in identifying issues and bringing them to
the employee's attention. Where management sits by the wayside,
a court may find that the employee's behaviour has been
At the 2015 Ontario employment law
conference, labour and employment lawyer Jeffrey
Murray will provide you with an in depth look at latest cases from
the Courts and labour arbitrators regarding employee discipline and
terminations. The session will cover:
When employers can and cannot discipline employees with
When employers can discipline for off duty conduct,
Best practices for disciplining for poor performance, and
How to decide if you should assert just cause for
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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