By: Iffat Ritter
Termination with Cause is the removal of an employee due to serious misconduct or a significant breach of the employment contract. This can include actions such as theft, fraud, severe insubordination, or other behaviors that fundamentally undermine the employment relationship. The employer bears the burden of proving that the misconduct was serious enough to warrant immediate termination without notice or pay in lieu of notice. To avoid legal repercussions the employer must be prepared to substantiate their claim that the termination meets the legal test.
Written notice of termination or pay in lieu of notice is not usually provided when there is just cause for dismissal. However, documentation should be kept by the employer that provides evidence for the justification of the dismissal. In the event that the former employee brings a claim for wrongful dismissal, evidence is crucial to proving that the termination was just in the circumstances and that the legal threshold for such termination was met.
It is less common that terminations occur without interventive steps taken, save in extraordinary circumstances. It is more common for termination to occur after warnings, and disciplinary measures have been unsuccessful. In cases where progressive discipline is taken, it is imperative that the employer follow and document any disciplinary measures taken against the employee prior to termination. This process must conform with internal policies and employment standards. Having proper disciplinary processes in place provide procedural fairness to the employee and level the playing field for the employer and employee.
The employee should be aware of these policies and provided with opportunities to remedy any concerns related to their performance and behaviour. Once the disciplinary process has been exhausted, if the employee has been unable to remediate the issues, then termination for cause may be justified.
The employer must be able to meet the burden of proof in such cases. If the employee is successful in showing they were unjustly terminated, it can result in punitive costs to the employer. The employee may become entitled to be compensated for their losses, inclusive of or in excess of the amounts payable under minimum notice periods prescribed by law. The amount of compensation is determined by various considerations including the employee’s position and duties, their age, and their length of service.
Termination without cause in Saskatchewan is permissible as long as it conforms with the legal requirements which include notice of termination or pay in lieu of notice. Common law may also apply entitling the terminated employee to additional compensation.
In Saskatchewan employers must provide written notice of termination or provide pay in lieu of termination to any employee who has been employed in excess of 13 consecutive weeks. The minimum notice period varies according to the length of employment. Where an employee has been employed for a period of time exceeding 13 weeks the notice periods are as follows:
- 13 weeks to 1 year – 1 week
- 1–3 years: 2 weeks of notice
- 3–5 years: 4 weeks of notice
- 5–10 years: 6 weeks of notice
- 10+ years: 8 weeks of notice
Where the employee continues to work during the notice period, their rate of pay and normal hours cannot be reduced. Where an employer opts to provide pay in lieu of notice, the pay must be equal to the wages the employee would normally have earned during that time including vacation pay for that period.
In some circumstances, employees may also be entitled to reasonable notice, based on common law principles, which can extend the prescribed statutory period. Considerations when determining the notice period include the employee’s position and duties, their age, length of service, and availability of comparable positions in the job market.
Common law notice periods are usually determined by the court. In the past Courts have set a maximum extended notice period of 18 months where long term employees have been terminated without cause. However recent cases suggest that the Court is not necessarily bound to the 18 months precedent. In several cases the common law notice period has been extended to up to 24 months. In these cases, the terminated employees were long term employees or were close to retirement. [1]
How Procido LLP Can Help
If your organization has questions or concerns about employee or employer rights and obligations, Procido LLP would be pleased to assist you in providing advice on whether your plans meet the legal expectations and standards. We can help you determine if your organization is in compliance with the legislated requirements. Feel free to reach out to Procido LLP Senior Counsel, Iffat Ritter with any inquiries, at iffat.ritter@procido.com.
[1] See Ketch v. Meadow Lake Mechanical Pulp Ltd. , 2023 SKKB 241 and Swidrovich v. Saskatchewan Place Association Inc., 2019 SKQB 50.
Disclaimer
This article is provided for informational purposes only and does not constitute legal advice. While efforts have been made to ensure accuracy, Procido LLP does not warrant or guarantee the completeness, accuracy, or applicability of the information to any particular situation. You should obtain legal advice specific to your circumstances before taking any action. For specific legal advice, please contact Procido LLP (www.procido.com) directly.