More warnings and suspensions for long-term employees?
Question: Is it true that the longer an employee's service, the more warnings or suspensions she should be given for misconduct before resorting to dismissal?
Answer: As referenced in the previous question, any assessment of misconduct and the potential for summary dismissal must adopt a contextual approach which takes into account all relevant circumstances. One of those factors will be the employee’s length of service. Other factors will include their previous disciplinary history, if any, their response when confronted with the allegations, and any mitigating circumstances. Generally speaking, a long-term employee, particularly one with a clean record, will be entitled to greater deference than a short-term employee with a history of misconduct.
When I give presentations on the law of dismissal, I often give the example of two employees that engaged in the same misconduct. Employee A has been with the company for 30 years, never been in trouble, admits the misconduct without being confronted, and offers an apology and assurance that it will never happen again. Employee B has only been with the company for six months, has already been disciplined several times, and refuses to admit any wrongdoing even when confronted with irrefutable evidence. In those circumstances, it is quite likely that a court will find that employee A is entitled to a second chance, but that employee B can be dismissed for cause.
The short answer is that yes, an employee’s length of service will be a factor in the assessment of whether summary dismissal is appropriate. However, there are many other factors to be considered as well.
