Termination

[Doaa Elrayes]

#95398

Forum: Private

In Ontario, an employee completed a 3-month probation period. Their initial remote work arrangement was based on a verbal agreement with a prior manager, with no mention of remote work in the written offer. A new manager, citing concerns about productivity and lack of visibility into the employee’s work, mandated a return-to-office meeting. The employee agreed to attend but later canceled, stating they had an interview with another employer.

The employer now seeks to terminate the employee for cause. Key considerations:

Does the verbal remote work agreement hold legal weight, given the absence of written terms?

Can refusal to attend a single in-person meeting (due to a conflicting job interview) constitute grounds for termination with cause under Ontario law?

What evidence is required to prove “lack of productivity” sufficient for cause?

Does terminating without prior written warnings expose the employer to wrongful dismissal claims?

Could you clarify whether termination for cause is legally defensible here, or if the employer should pursue termination without cause to mitigate risk?

[Haley O’Halloran]

#95399

Termination for cause is a serious employment action under Ontario law and sets a very high threshold. Below is a breakdown of the key legal considerations in your scenario:

1. Verbal Remote Work Agreement: Legal Weight
Under Ontario employment law, verbal agreements can hold legal weight if there is clear evidence that both parties mutually agreed to specific terms, such as a remote work arrangement. Even though the written offer did not mention remote work, if:

-The prior manager allowed and endorsed the remote work arrangement,

-The employee worked remotely consistently with management knowledge, and

-There were no formal objections,

…then an implied term may have been created. Courts consider the entire employment relationship, including conduct and oral agreements, not just written contracts.

However, verbal agreements are more difficult to prove and enforce. The change in management and lack of documentation could weigh against the employee in a dispute.

2. Refusal to Attend a Single In-Person Meeting
A one-time refusal to attend an in-person meeting—especially if justified (e.g., conflicting job interview)—is unlikely to amount to just cause for dismissal.

Ontario courts have consistently ruled that a single incident of insubordination does not meet the threshold for cause, unless it’s egregious or part of a larger pattern of misconduct. Courts look for:

-Repeated refusal to follow reasonable instructions

-Willful misconduct or disobedience

-Clear communication that failure to comply would have consequences

Here, the employee did notify the manager about the conflict, which weakens the case for insubordination.

3. Evidence Required to Prove “Lack of Productivity”
To terminate for cause based on performance, the employer must meet a very high evidentiary standard, typically requiring:

-Documented performance issues over time

-Clear expectations communicated to the employee

-Opportunities to improve, including written warnings and performance improvement plans (PIPs)

-Proof that support and guidance were provided, and the employee still failed

Mere subjective concerns or vague dissatisfaction are not sufficient.

4. Risk of Terminating Without Prior Written Warnings
Yes, terminating without progressive discipline or written warnings exposes the employer to wrongful dismissal claims. Courts expect employers to:

-Clearly communicate deficiencies

-Allow a reasonable period to improve

-Warn the employee of possible termination if issues persist

Skipping these steps undermines a claim of just cause.

5. Should the Employer Pursue Termination for Cause or Without Cause?
Termination for cause is not likely defensible here. It would be very risky to pursue, and the employer could face:

-A wrongful dismissal claim

-An order to pay reasonable notice or pay in lieu, potentially several months’ salary

-Reputational and legal costs

Recommended approach: Proceed with termination without cause, while offering appropriate notice or severance in line with the Employment Standards Act, 2000 (ESA) and possibly common law (which may require more than ESA minimums). However, I am not a lawyer and highly recommend you seek out legal counsel for advice on this matter.

-HRInsider Staff

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