By Stuart Rudner
As regular readers will know, just cause for dismissal is one of my favorite topics to discuss. I have read thousands of cases on the subject in order to write and update my book, You're fired! Just Cause for Dismissal in Canada.
Recently, I was privileged to be one of the presenters at the Human Resources Professionals Association's (HRPA) annual conference in Toronto. My session was titled "Just Cause — Not Necessarily a Lost Cause," which is actually somewhat of a variation on a saying that I often repeat: "just cause is not a lost cause."
What I wanted to comment on now, however, is the need for employers to learn to provide negative feedback to their employees, and to document all concerns. If they don't, their chances of successfully satisfying a court or arbitrator that just cause for dismissal existed will be greatly diminished.
"Document, document, document" is a phrase that employment lawyers repeat constantly when coaching their clients. In order to have something to document, however, it is important that when an employee engages in inappropriate conduct, or does not perform as they should, they are confronted and warned of the consequences of further incidents. The difficulty, of course, is that most managers and supervisors are not comfortable providing negative feedback, particularly with individuals that they have a close working relationship with.
Last year, I left the firm that I had practiced with for my entire career and started Rudner MacDonald LLP, a firm practicing exclusively in the area of employment law, with my good friend Natalie MacDonald. As a result, I am not only an employment lawyer, I am now also an employer. I understand that, sometimes, it is not so easy to provide negative feedback to your staff, for various reasons. I now have a better understanding of my corporate clients, who resist the suggestion to raise and document every concern. To be honest, I have now adopted the same approach with my corporate clients that I use with my children: Do as I say, and not as I do.
Having seen first-hand the difficulty of offering negative feedback to employees, I found some inspiration from a very unlikely source: My son's karate class.
Recently, I watched his class and observed the manner in which the sensei interacted with the students, aged roughly between six and 10 years old. The sensei clearly had a good relationship with the kids, and was friendly and collegial with them. However, he did not hesitate to tell them when they were doing something wrong, whether it was performance-related, such as being in the wrong stance, or conduct-related, such as failing to keep quiet.
When it was called for, he would speak with them sternly and, on occasion, order them to give him 10 pushups. Managers and supervisors could learn a lot from the sensei, though I certainly do not want anyone to take this as encouragement to force employees to do pushups. However, it was an excellent model of a relationship where the person in charge was able to maintain a friendly relationship with those he was supervising, while also being perfectly comfortable raising concerns with them.
Managers and supervisors should be trained in the art of providing negative feedback. And, of course, once they speak with an employee and tell them of their concern and the potential consequences of a failure to improve, they should document that. While the goal is never to build a file in order to be able to fire an employee, it is important to have documentation available in order to support summary dismissal if it becomes appropriate.
As I mentioned during my presentation at the HRPA conference, in the vast majority of cases where clients tell me that an employee has had a lengthy history of misconduct or poor performance, the first thing I asked to see are performance reviews. In the vast majority of cases, the employee is graded as being average or above, and there are no references to concerns regarding behavior or performance. In such circumstances, it will be virtually impossible for the employer to satisfy a court it had just cause for dismissal on that basis.
As a result, I encourage employers to have the confidence to provide negative feedback when it is warranted, and also to ensure that any and all concerns are documented, both in response to particular events, and also in formal performance reviews.
Conversely, when I work with employees, I often coach them to respond to warnings and discipline that they have received. If they disagree with the allegations that have been made, it is crucial that they respond in writing in order to document their own version of events. Otherwise, the employer’s version will be the only one in the file, and they will have a hard time refuting it if a dispute develops.
Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at firstname.lastname@example.org. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.