Dismissing for cause

Question: When can an employer dismiss an employee for cause due to the employee’s incompetency in performing her duties?

Answer: Once an employer has determined a deficiency exists on the part of an employee in the performance of her responsibilities, it is necessary to provide the employee with clear and proper warning with respect to her incompetence and sufficient time to improve. The warning given by the employer should be clear and identify the areas in which the employee is lacking and state that if the employee fails to improve in the allotted reasonable-time frame, she will be dismissed for cause. The warning should be provided in writing.

The employer must also be careful to ensure it has given the employee the necessary resources to fulfill the competency requirements which it has set out. A failure to do so may result in an employer being unable to establish just cause for termination. The best way for an employer to protect itself in this regard is to always be reasonable in its demands.

If, after the employer has carried out the above, the employee fails to attain the requisite level of competence within the specified reasonable-time period, it may then be possible to dismiss the employee for cause.

Peter Israel is counsel to Goodman and Carr LLP in Toronto and is head of the firm’s Human Resource Management Group. Peter can be reached at pisrael@goodmancarr.com or (416) 595-2323.

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