Terminating a worker for poor performance

Spur-of-the-moment decisions not recommended
By Robert Olson
|Canadian HR Reporter|Last Updated: 11/22/2011

There are varied reasons for terminating employment. Sometimes, it can be a clear-cut decision involving relatively simple execution, assuming there is proof. For example, if an employee stole money or sexually harassed a co-worker, the employer has an easy decision to make and an easy case to prove.

But sometimes a decision around termination needs to be made not because there was one serious event — or multiple culpable ones — but because an employee has performed poorly. Although this might appear to be a straightforward decision, employers need to keep several points in mind before an employee is let go because it will likely make a difference as to whether a just cause termination stands up in court.

Employers must first establish cause for dismissal based on poor performance. To properly establish cause, the employer must be able to show a judge or arbitrator it communicated clearly the level of performance expected, given the specific duties assigned.

Next, the employer must prove the employee was given appropriate instruction, and possibly supervision, to ensure the standard could be met.
Assuming these elements are established, the employer must show the employee was clearly warned continued failure to meet the standard would result in termination. If the employee was warned and the employer can prove she was still unable to meet the standard, the employer will likely have successfully terminated the employee.

It is also important the employer documents each instance of poor performance and each discussion with the employee about this.

Moreover, employers cannot take one single failure to perform a task as cause to terminate, unless of course that one task is critical to the company and failure to perform had a significant impact or caused serious safety concerns.

Employers must show documented evidence the steps set out above took place. It’s also preferable to obtain an employee’s signature acknowledging receipt of the communications.

Failure to properly document the steps will usually cause a termination to fail or result in a monetary award to the employee, instead of reinstatement. Knowing an employee has performed poorly, but failing to include critical language in performance reviews or provide written warnings, could result in an employer being deemed to have condoned the poor performance. Once such a determination is made, the employer cannot rely on that behaviour as grounds for termination.

The more warnings given, the greater likelihood the termination will be upheld — the standard of incompetence necessary to establish cause for the termination will be lower than the standard required in cases where warnings were never or rarely given — assuming the employee did not improve.

In cases where an employee does improve following the warnings, a subsequent regression into poor performance will likely require another warning, unless a pattern is established to indicate the employee repeatedly regresses following brief periods of improvement.

Furthermore, the standard of an employee’s performance will be an objective standard and not an employer’s subjective interpretation of what standard the employee ought to meet. Average results will not satisfy the requirement for termination unless there is significant prejudice to the employer or a safety issue. The test will be whether or not an employee of reasonable skill and ability could perform the tasks expected.

Based on that analysis, a termination will be deemed to be reasonable or not. Samples of the work will then be relevant in determining the objective standard and, at times, it may be appropriate to engage an independent third party to assess what might be reasonable.

The employer’s instruction and supervision must also be realistic, otherwise the standard of what might reasonably be expected of an employee will be lowered. Employers cannot assume an employee is solely at fault for poor performance. Due diligence is required to ensure other employees, the system generally or any other factors are not contributing in some way.

It is critical an employer properly warns an employee prior to termination, while giving sufficient time and opportunity to improve. If the standards are reasonable — and the employee failed to meet them without other factors excusing the failure — and proper warnings were given with time to correct the behaviour, the termination will likely succeed.

Terminations for poor performance will generally fail if they are spur-of-the-moment decisions. They require documentation and time, while adhering in a genuine way to the labour and employment law principle that employees ought to be given an opportunity to improve, unless something so severe has taken place as to warrant an immediate termination for cause.

Robert Olson is a labour relations and employment lawyer acting for both employer and union or employee clients at Thompson DorfmanSweatman in Winnipeg. He can be reached at (204) 934-2347 or rwo@tdslaw.com. For more information, visit www.tdslaw.com.

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