Dealing with poor performance

What to do with an employee who doesn't seem to care about the job he's doing

Question: A two-year employee has been making errors at work and doesn’t seem to care. We have worked to ensure instructions are clear and spoken to the employee about the errors but he just makes different errors each time. We have given him his first written warning and discussed suspension, but his attitude is that it will hurt us more than him. Business is slow but a layoff wouldn’t be the answer because we don’t want him back. What would he be entitled to if we dismissed him?

Answer: The first important point that needs to be addressed is that there is a significant difference between most unionized workplaces and those where employees are not represented by a trade union. Ordinarily, a unionized employer is restricted by the terms of the collective bargaining agreement between the employer and the union such that employees may only be terminated from their employment for just cause.

By contrast, in a typical non-union indefinite term hiring situation, the employer has the right to terminate without just cause if the employee receives reasonable notice of termination or pay in lieu of notice. In that circumstance, the employee is also under a duty to take reasonable steps to secure other employment to lessen the loss of income from the termination of his employment. For simplicity’s sake, I will assume this is a non-union workplace and the employee is under an indefinite term contract of employment.

In determining what is owed to this employee upon dismissal, it is important to first consider whether his ongoing unsatisfactory work performance amounts to just cause for the summary termination of his employment. Obviously, if there is just cause, the employer will not owe the employee anything upon dismissal. It is difficult to assess whether the inadequate job performance does amount to just cause. It would be important to have all of the necessary facts to make such an assessment and local legal counsel should be consulted in that regard.

However, it is clear that “just cause” entails significantly more than just an employer’s dissatisfaction with an employee’s performance or attitude. Just cause requires very serious misconduct. In relation to inadequate job performance, the employer must prove certain necessary elements. Basically, the employee must be notified of the expectations and standards of performance he is required to meet. The employee must fall short of those expectations and standards and he must be warned that a continuing failure to achieve those standards will jeopardize ongoing employment. The standards of performance must be reasonable and the employee’s failure to achieve them must be for reasons within his control.

In this case, the employee has already been warned and a suspension has been discussed. It is important to issue appropriate warnings to the employee but caution should be exercised before imposing a suspension as a disciplinary measure. In a non-union setting, the employer does not automatically have the right to impose suspension as a disciplinary sanction. It must be something that is included as a term of the employment contract either within the contract itself, as a matter of company policy or by necessary implication based upon past practice. If an employer does not have the right to impose a suspension based on the employment contract, the suspension could amount to constructive dismissal.

The onus of proving just cause rests with the employer. For this reason, it is important to document performance related communications between the employer and the employee. In some cases, it will be necessary to provide repeated warnings to the employee before just cause can be proven. Ordinarily, it is more difficult to establish just cause for termination for inadequate job performance for long-term and senior employees who have previously demonstrated a satisfactory level of performance over time.

In the event an employer does not have just cause for termination, the employee will be entitled to reasonable notice of the termination of his employment or pay in lieu of that notice. It is acceptable to provide “working notice,” but many employers are reluctant to do so because of the anticipated negative impact on morale and productivity. In some circumstances employers are also fearful of deliberate misconduct by the employee who is working under notice of termination.

The period of notice that will be required for any individual employee is not calculable by reference to any particular formula. Instead, courts typically look at a number of factors as well as comparable cases which have considered similar employment circumstances in the past.

The leading case in relation to the calculation of reasonable notice is Bardal v. Globe & Mail Ltd., where the court identified the following factors as being relevant to the amount of reasonable notice: The character of the employment, the length of service of the employee, the age of the employee and the availability of similar employment, having regard to the experience, training and qualifications of the employee.

Other factors can also have an impact, such as economic conditions and the labour market. An employee should normally be able to find other employment more easily in a robust economy than in recessionary times. It is also useful to look at comparable cases in which the employee’s age, length of service and character of employment are similar.

Every situation has its own particular facts that can affect how it would be viewed in court. It would be useful to have a lawyer review the facts of the situation to assess whether there is just cause for the summary termination of this employee. Even without just cause, it would be useful to consult a lawyer to determine what would be a reasonable period of notice of termination based on the factors identified above.

For more information see:

Bardal v. Globe & Mail Ltd., 1960 CarswellOnt 144 (Ont. H.C.).

Brian Kenny is a partner with MacPherson Leslie and Tyerman LLPin Regina. He can be reached at (306) 347-8421 or bkenny@mlt.com.

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