Dealing with an indifferent employee
Question: If an employee is simply not doing his job and doesn’t seem to care, can he be fired without prior discipline or warnings? If not, can anything justify immediate dismissal for cause?
Answer: It is not impossible, but it is uncommon.
Where an employee is simply not doing the job and does not seem to care, the general rule is that you cannot dismiss without prior discipline or warning. This has been called the duty to warn. Without some communication, the employee may not share the employer’s perspective and may, in fact, believe she is doing the job — after all, wasn’t the employee paid last week?
Courts view dismissal as a measure of “last resort.” Consider Richardson v. Davis Wire Industries Ltd., where an employee was caught on video repeatedly sleeping on the job. The court said that sleeping on the job by itself would not have justified dismissal in the circumstances (although the dismissal of the employee was otherwise justified on the basis of dishonesty). The bar for termination without warning or prior discipline seems high.
To guard against liability, an employer should generally provide a clear warning to the employee that performance is inadequate and that improvements must be made within a specified time. The employer should confirm that the employee understands this warning. Then, the employee should be given a reasonable opportunity to improve.
Nevertheless, there are exceptional circumstances where not doing the job can justify summary dismissal without prior warning — but it requires an added dimension such that it amounts to serious misconduct. In Dollco Corp. v. Frobel, the Ontario Labour Relations Board decided that an employee’s behaviour amounted to a single act of serious misconduct justifying summary dismissal. The employee had taken advantage of periods of reduced supervision, when he was supposed to be working and training a new employee, to sneak out of the workplace and go work on a car in the parking lot. The board noted that the employee had done so knowing it was contrary to company rules. In cases where an employer wants to summarily dismiss an employee without any prior warning and discipline, it will be particularly important that whatever duties and expectations that the employee failed to meet were clearly established.
Ultimately, whether certain behaviour justifies summary dismissal depends not only on the misconduct itself, but on considerations such as an employee’s length of service, disciplinary record, and the presence of any mitigating circumstances. Not doing the job or not caring alone, absent prior warning, usually does not suffice.
For more information see:
• Richardson v. Davis Wire Industries Ltd., 1997 CarswellBC 702 (B.C. S.C.).
• Dollco Corp. v. Frobel, 2012 CarswellOnt 11713 (Ont. Lab. Rel. Bd.).
Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected].
