Partying on a job site, criticizing mask-wearing: Reasons to fire employees for cause or not?

Several employees of a GTA drywall company were recently fired after a graphic video appeared to show them dancing with a woman and drinking in a home under construction in Milton, violating COVID-19 restrictions. Their employer, Nelmar Drywall, said it had terminated its relationships with the people in the video. Builder Mattamy Homes, which counts Nelmar as a trade partner, confirmed that the party took place at one of its job sites, and issued a statement calling the incident “extremely inappropriate and entirely unacceptable.”

Though the employees were fired, it’s not clear whether it was for just cause. This type of termination is reserved for the most egregious workplace acts. But in my experience as an employment lawyer, it’s often misapplied by employers across Canada.

Here’s what you need to know about dismissal for cause in Canada, when this type of termination is truly valid and whether it applies to the construction workers caught on camera.

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VIDEO: Construction workers fired after video surfaces showing party at Milton site 

What is a termination for cause?

A dismissal or termination for cause occurs when someone is fired for a valid reason, such as inexcusable workplace misconduct. When a person is fired for cause, they are not entitled to a severance package or employment insurance. Because firing for cause removes these rights from the employee, it cannot be applied to just any termination. An employer must prove that the employee took an action that was illegal, unethical, insubordinate or against company policy.

An employer generally needs to provide a series of documented warnings to the employee addressing their behaviour prior to terminating their employment.

READ MORE: Laid off in a bad economy? You might be owed more severance, not less 

What is a termination without cause?

In a termination without cause, a company can fire an employee for many reasons, as long as they aren’t discriminatory. Reasons for this type of termination include layoffs, restructuring or company relocation.

The employer must provide the employee with the proper amount of severance pay when they are let go without cause. If your severance package is not fair — and I have found over the years that most aren’t — you have been wrongfully dismissed. That is why it is extremely important to contact an employment lawyer at Samfiru Tumarkin LLP to find out if what your employer is offering is as much as you’re actually entitled to.

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READ MORE: 5 ways to determine if your severance package is fair 

Can I be fired for poor performance?

It is extremely difficult for an employer to let someone go for cause for performance reasons, especially if that individual is trying their best to make improvements. There might be mitigating factors affecting their performance, or perhaps their employer has set the bar impossibly high.

Doing things that you’re not supposed to at work, such as showing up late or speaking rudely, is not good, but it’s not enough of a reason to terminate someone for cause. If your employer tried to let you go in this manner, claiming that your performance was poor, contact an experienced employment lawyer immediately.

Can I be fired for conduct outside the workplace?

A recent incident involving a neonatal intensive care nurse demonstrates that behaviour outside the workplace can get you fired for cause. Kristen Nagle, a nurse in London, Ont., publicly criticized COVID-19 public health measures when she spoke at a summit in Washington, D.C. on January 6. Nagle also previously participated in anti-mask and anti-lockdown rallies in Ontario. 

An employee’s actions outside the workplace can result in a for-cause dismissal, but only if the actions impact, or reflect badly on, the company they work for. In this case, Nagle took actions that made her colleagues and patients alike reluctant to continue working with her.

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This was also not the first time Nagle had been disciplined for actions that were “not aligned” with her employer’s values, so her employers could argue that the for-cause termination was justified, given that they had tried other disciplinary measures.

Was the conduct of the construction workers deserving of termination for cause?

Terminations for cause can be difficult to prove. The construction workers who were partying at a job site, however, took videos of the incident. The videos provided ample proof to their employers that the employees were guilty of two things: violating the company’s ethical code of conduct and blatantly ignoring COVID-19 safety protocols. Based on the evidence and facts that we are aware of, there is a good chance that termination for cause applies to this situation.

READ MORE: Severance pay for contractors: What to know and what to do if you think you’re an employee 

The potential exception would be a newly hired employee who was present in the video, but did not participate in the party. In that case, the employee could claim that they did not feel comfortable telling their superiors to stop their behaviour, and that they had no authority to reinforce company policy on the job site when the party took place. If the new hire were to be terminated, it would not be for cause, and severance pay would be owed.

That is why I constantly point out, on every livestream, radio and TV episode on employment law that our firm hosts, that every situation is unique and different and needs to be explored with the help of an experienced employment lawyer. Termination for cause is a high bar to reach, and not every employee deserves to lose their severance.

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 Have you been fired with or without cause? Not sure if you’re owed a severance package or how much it should be?

Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, Alberta, or British Columbia. Get the advice you need — and the compensation you deserve – from the most positively reviewed employment law firm in the country.

Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims. He provides free advice as the host of Canada’s only Employment Law Show on TV and radio.

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