In some circumstances, litigation may be unavoidable, but employers who take the proper precautions before initiating the termination process can minimize the financial and emotional costs of this most difficult aspect of human resource management. Determining whether there is cause for dismissal is a crucial question because, if there is, an employer is within its rights to terminate immediately and without notice. The common categories of offences where courts have found just cause for dismissal include serious misconduct, incompetence, dishonesty, theft or fraud, insubordination, serious neglect of duty, conflicts of interest, and, in some cases, serious incompatibility for reasons of, for example, hygiene.
Employers bear the onus of proving just cause.
Because it is relatively rare for employees to be discharged on the basis of one incident alone, this means that keeping a record of the employee's performance or behaviour problems is essential to heading off or winning a legal dispute. In addition, the employer must demonstrate that it adhered to the practice of progressive discipline in dealing with the employee. The court will expect the employer to have reacted to the employee's history of problems appropriately, by issuing warnings, communicating expectations or applicable standards and, where warranted, imposing penalties or offering assistance. All disciplinary or remedial responses should be documented. If there is no cause for dismissal, an employer will have to give reasonable notice, or payment in lieu of notice.