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We had an employee who frequently failed to show up to work, claiming personal reasons which, at first, we understood and accommodated. When it became too frequent that it negatively affected our ability to conduct business, we terminated the employee for cause. The employee took us to court for wrongful dismissal. The employee won, based on the premise that the company expectations were not clear and appropriately enforced. What did we do wrong?
– Confused Manager
Hi Confused Manager,
This is a great question, and a common one! In fact, wrongful dismissals have become the most common labour claim in the US and are increasingly common in Canada.
The first thing to address is what the courts will look at. This will include whether the employee actually violated a standard or policy, whether the employee knew the policy, was given a warning and an opportunity to improve, and whether the behaviour was tolerated before dismissal. If the misconduct had occurred previously, or even frequently without any consequences, the employer is going to have a harder time persuading the courts that the employee knew such behaviour wasn’t acceptable. The fact that your company accommodated his or her tardiness initially might have seemed like a good idea, but ended up causing more problems due to inconsistent application of your organization’s performance management policy.
Here are some standard procedures we recommend putting in place consistently. That way, if (or when) misconduct occurs, you can provide adequate evidence if taken to court.
First of all, make clear your disciplinary policies and performance standards. This doesn’t just mean printing your policies and storing them in the filing cabinet. Make sure all employees have access to the company policies, have read them and signed their understanding and have the opportunity to inquire about them and gain further understanding. The court will look to see if you have a standard or policy governing the behaviour in question, if you can demonstrate the employee knew the standard and if it was applied uniformly and consistently.
Second, record all accounts of employee misconduct including any eye witnesses and any supervisor notes regarding performance deficiencies. Stick to facts rather than personality traits, for example, “employee was tardy and non-communicative” would be better written “employee arrived 50 minutes late and failed to notify supervisor in advance”.
Third, detail all performance evaluations, whether formal or informal, where performance was discussed. At any formal performance reviews, record the discussion and opportunities provided to the employee to improve performance. Important here is making sure the employee actually understands the performance issue. If the employee doesn’t believe his or her performance is an issue or feels he or she is being unfairly represented then little progress will be made.
Fourth, provide and document a clear and final written warning to the employee regarding pending termination.
Although these are great ways to protect your organization if taken to court, they are also general positive ways to approach human resources. The goal, of course, is not to protect yourself from your employees, but to work with them. If employees are on board with the organization, know the standards and what is expected of them, are provided ongoing feedback and encouragement and given opportunities to improve areas of weakness, your organization will reap the benefits, far more than winning in court.
Zvulony & Co. What is Just Cause for Dismissal?