Let us assume that an employer thinks it has enough cause to fire an employee and it does so. At the wrongful dismissal trial later, the court concludes that the cause did not justify the firing. Can the employer ask that the wrongful dismissal damages be reduced due to the cause that did exist? In other words, even if it was not sufficient to warrant summary dismissal, can some cause correspondingly reduce damages payable to the employee?
The judicial approach to termination notice applied by the Supreme Court of Canada was stated in the 1992 case of Machtinger: "The most frequently cited enumeration of factors relevant to the assessment of reasonable notice is from the judgment of McRuer C.J.H.C. in Bardal [(1960), 24 D.L.R. (2d) 140 (Ont. H.C.)] was, at p. 145: 'There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.'"
In most employment dismissals that are litigated, improprieties can be found on the part of both employee and employer. The standard required to support a finding of sufficient cause for summary dismissal is left to the instincts of the trial judge in the rich factual context of each case. It may appear simplistic and perhaps arbitrary to determine that an employer possessed either sufficient legal cause or no legal cause to fire an employee. However, the judge has considerable discretion as to whether there was sufficient cause, the length of notice period, and [Wallace] damages. The judge will structure the overall decision to create a just outcome by applying the current mix of variables, and without the need for the intermediate third alternative of near cause. Indeed the judge ultimately will consider all evidence of cause and performance in rendering the decision.
Bowal Peter, "The Employee is Just a Little Bad!", Law Now, May/Jun 2007, Vol. 31, Iss. 5; p. 10.