Many little offences can tip the scale in firm’s favour

Gian Daley should have seen the writing on the wall before he hit it.

His employer, Depco, slavishly adhering to its progressive discipline policy, was “writing him up” relentlessly. Daley was counselled, warned verbally, in writing, suspended and, finally, dismissed.

Undaunted, he sued for wrongful dismissal. From his perspective, he had worked hard for 13 years. He was 58 and planned to work until retirement. Although there had been a few incidents of misconduct, they were minor — nothing serious. He had admitted his shortcomings and apologized. As he perceived it, no one is perfect and what imperfections he had did not justify cause for an older, longer-service employee.

But Depco did not see Daley in the same light. The word “perfection” was hardly associated in its mind with him. Daley had added the wrong resin to a job, shutting down the entire production line for several hours. His continued carelessness shut down the line on three other occasions, as well as resulting in the scrapping of parts and corrupting of product. Another time, he was sent home after attending work under the influence. He was also confrontational with co-workers and uncooperative.

Depco, like many employers, had a problem employee. It viewed it as a problem with no solution: Should it put up with him, risking further incidents, or pay a large severance package?

A dismissal for cause seemed to the company unlikely. Each incident, although upsetting, did not appear to be clearly sufficient.

Seldom does one incident of misconduct constitute cause for discharge. It requires repeated misconduct after a warning that termination may result. Usually, cause is established when similar misconduct is involved and repeated regularly. But Daley’s misconduct was sporadic. Six months could go by without a problem and then, like a curve ball, Depco had to deal with a completely different issue. Yet, soon after, another incident would occur and production would be stopped again.

But even if no single incident amounts to cause in itself, a number of cumulative, even if unrelated, incidents of misconduct can. When any new misconduct occurs, old offences may be invoked and put on the scale against the offender as cause for dismissal.

How did the judge see Daley? Daley’s continued carelessness meant he was no longer bound by the employment agreement with Depco. Depco had cause. His case was dismissed.

The message for employers is encouraging. I refer to it as the incorrigibility test. Persistent documentation of cumulative but unrelated misconduct that does not improve indicates an inability on the part of the employee to perform his or her duties. An employer is not required to continue to accept ongoing substandard levels of performance.

What are the practical lessons for employers?

– Develop a clear, written policy of discipline, including a procedure for providing written warnings that include consequences leading up to termination for cause.

– The policy should be carefully drafted to ensure not only that it contains all of the necessary legal elements, but also that it is practical and easily administered.

– If progressive discipline is part of your policy, as it should be, make sure you can skip steps, where appropriate, to allow for the exercise of discretion.

– Follow the policy consistently.

– The documentation should reference prior warnings and misconduct, and indicate what steps will be taken if the misconduct is not corrected, including dismissal for cause.

– If you intend to terminate for the next offence, do not say that further action will be taken upon the next occurrence, “up to and including discharge.” That statement, which seems to be used by many human resource departments, means that termination will not necessarily result the next time.

– Consequences must be reasonable and fair in balancing the interests of both the employer and the employee.

– Before cause is asserted, consult legal counsel (if counsel is not already involved) to ensure that the treatment of the employee will withstand the scrutiny of the court.

Employers must put effort into successfully terminating for cause. However, once that effort is expended, even an employee approaching retirement with significant service can effectively be dismissed if performance is chronically deficient.

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If you, or someone you care about, is dealing with employment law issues in the Toronto, Ontario Region, contact Lang Michener LLP.

This article is taken from an interview with Howard A. Levitt,Employment Lawyer at Lang Michener LLP, a Toronto, Ontario Employment Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.