Minor mistakes can add up
Question: Our organization follows a progressive discipline plan and one employee has received several verbal and written warnings for mistakes. Each mistake on its own is relatively minor, but it’s apparent the employee is not going to improve and his mistakes are cumulatively costing the company. Is there a threshold where a number of minor infractions can amount to just cause for dismissal?
Answer: It is always advisable to have a discipline policy in place. Progressive discipline can take many forms, but I always recommend employers not lock themselves into a strict sequence of disciplinary steps without reserving any discretion to take circumstances into account. An example of this would be a policy that provides that any first offence will result in a verbal warning, a second offence will result in a written warning, and so on. In that context, the employer can find itself in the situation where an employee is guilty of particularly serious misconduct, but the employer is bound by the wording of its own policy to impose nothing more than a verbal warning. If they attempt to take a stronger position, the employee may complain that the employer has not followed the policy it drafted.
Conversely, just cause can be established “brick by brick,” as the late Justice Randall Echlin of the Ontario Superior Court of Justice explained in Daley v. Depco International Inc., in cases where the individual instances of misconduct are insufficient, in and of themselves, to warrant dismissal. In that case, Daley was disciplined for nine different incidents, ultimately resulting in his dismissal for cause. The offences included carelessness, suspected alcohol impairment, unreported absences, and altercations with colleagues. The employer sought to rely on all nine incidents to justify the termination. In his decision, Justice Echlin found that while each of the incidents, on their own, might not be sufficient to prove just cause, the series of incidents, viewed as a whole, amounted to “enough bricks to constitute a just cause wall.” In reaching this decision, Justice Echlin explicitly referred to the Supreme Court decision in McKinley v. BC Tel and the requirement that a contextual approach be used, taking into account all of the relevant circumstances.
For more information see:
• Houlihan v. McEvoy, 2002 CarswellBC 20 (B.C. S.C.).
• Daley v. Depco International Inc., 2004 CarswellOnt 2574 (Ont. S.C.J.).
• McKinley v. BC Tel, 2001 CarswellBC 1335 (S.C.C.).
