* Question 1 * What must be shown in order prove just cause?
In order to prove just cause courts will answer the following two questions: can the employee misconduct be proven? And, whether or not the employee has breached the contract in a significant and fundamental way? (Zvulony, 2010). If the employer is able to answer both these questions than there is just cause for dismissal, should answer no to either of the questions then they have no right to end the employment relationship. This would mean that they owe and either pay in lieu of notice or reasonable notice to the employee.

If employees demonstrate any of the following criteria the employer may have the right to terminate the employee for just cause: insolence, subordination, off-duty conduct, intoxication or substance abuse, “theft, fraud and dishonesty, assault or harassment of co-workers, breach of duty, serious willful misconduct, conflict of interest (especially if it results in a loss of income to the employer), serious breach of company rules or practices, serious undermining of the corporate culture, chronic absenteeism or tardiness and unsatisfactory performance” (British Columbia Ministry of Labour, 2013).
Should an employer choose to terminate an employee on the basis of Just cause, the burden of proof is on the responsibility of the employer. They must indicate that there was a fundamental breach in the contract, in order to do so there are two approaches: the proportionality approach, and the contextual approach. * The Proportional Approach
The first approach to proving the burden of proof is the proportional approach. This approach indicates that the punishment should be proportional to the crime. In order to determine whether or not it is proportional to the crime the courts will consider the factors determined in McKinley V. BC Tel., that were applied in Whitehouse v. RBC Dominion Securities Inc., here the courts referenced the case to determine the nature of the employees duties, the employers expectations of them, and the relationship between the employee and the employer (Whitehouse v. RBC Dominion Securities Inc., [2006] CarswellAlta 706).
A key determinant in the proportionality approach is whether or not the misconduct of the employee goes to the root of the contract. This can be seen in the Varsity V. Plymouth Chrysler case where the Mckinley v. BC Tel case is quoted again and states that each case shall be examined based “on its own particular facts and circumstances, and considers the nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship[. This approach] properly emphasize[s] that dishonesty going to the core of the employment relationship caries the potential to warrant dismissal for just cause” (Varsity Plymouth Chrysler (1994) Ltd., V. Pomerleau, 2002 ABQB 512). * Application of the Facts
Susan breached the employment contract by performing extra work on the side for a client of the company. While she was doing the work for the client she did not inform her employer that she had taken extra work outside of the company because she needed more income. Therefore even though her actions did not compete with the employer and did not financially harm them, her actions were deceitful. This type of deceit is significant for the employer must be positive that their sales associates will not perform work with clients outside of the firm, for it could financially impact their business. Her actions would make it difficult for the employer to trust that she would not use another client for the same purposed in the future. The employer was therefore justified in terminating her on the basis of just cause.
The contextual Approach
The second approach to proving the burden of proof is the contextual approach. With this approach the courts consider the nature and severity of the misconduct in the context of the overall employee/employer relationship, as well as the relevant circumstances of the situation. The factors considered when determining whether or not the employer’s reaction to the incident was appropriate based on the conduct of the employee include: : length of service, performance and discipline history, mitigating circumstances, the financial impact of the actions on the employer and the employee’s response to the incident. * Application of the Facts
It is true that Susan breached the non-solicitation clause she had agreed to, however her dismissal without notice was not justified. To begin with she had been a model employee for the company for the last 10 years. Her performance appraisals all indicated that she was an effective, hardworking employee. Furthermore in considering the severity of her actions the employer did not take into account any mitigating circumstances in her life; the fact that she needed extra money to pay for her mother’s medication. Finally after her dismissal she wrote to the company in a respectful manner explaining the reasons for her actions.
It is also important to consider the fact that Susan’s action caused no harm to ABC Ltd. By working with the client she was not competing against her employer, harming the employer’s reputation, or causing them a financial loss. They may have been justified in terminating her for breaching the contract, but they should have paid her in lieu of notice, or given her reasonable notice. * Question 2 * What the employer should have done (No Just Cause)
The most appropriate way to deal with an employee who has behaved in a manner that breaches the contract but does not warrant a just cause dismissal is through Procedural Fairness. Procedural fairness begins with giving the employee the chance to respond to the allegations relating to their misconduct. Doing so will give them the opportunity to indicate any mitigating circumstances or reasons for their behaviour. If the employer still believes that terminating the employee based on just cause is appropriate in relation to the employees conduct then they should consider the following 4 criteria: 1) were the employees actions premeditated or a momentary lapse in judgement, 2) evaluate the employees misconduct based on the context of their overall employment history, 3) look at any extenuating circumstances such as an illness in the family, and 4) evaluate the response of the employee to the allegations. For example do they demonstrate regret, anger or denial? If the employer is able to identify the majority of these criteria in a negative way then they have just cause in terminating the employee. * Application of the facts
In Susan’s case the employer should have begun by discussing Susan’s actions with her. Had ABC Ltd. done so, they would have been able to determine that she met all the criteria for procedural fairness. To begin with her actions were premeditated; she had met the client and worked for them more than once: implying that her actions were planned. Secondly within the context of her overall employment history she had been an exemplary, hardworking employee for past 10 years. Thirdly there were extenuating circumstances that influenced her decision to work with the client: her mother was ill and she needed extra cash to pay for her mother’s medication. The fourth criterion that Susan met is that she demonstrated remorse for her actions, and apologized in a respectful manner to her employer.
Works Cited
British Columbia Ministry of Labour. (2013). Just Cause Factsheet. Retrieved 3 30, 2013, from http://www.labour.gov.bc.ca/esb/facshts/justcaus.htm
Zvulony, K. (2010). What is just cause for dismissal? Retrieved 3 30, 2013, from Zvulony and Co.: http://zvulony.ca/2010/articles/employment-law/what-is-just-cause/

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