Discipline is no panacea for misconduct. Canadian employers seeking to discipline and then dismiss a habitual underperformer have limited options at their disposal: Pay severance and get it over with; or progressively build a case for cause.
If an employer chooses the latter course, the underperforming employee may grow tired of the battle and voluntarily leave, or enough ammunition may be obtained to ultimately support the employer’s case. Instead of accepting defeat, an employee should fight back — challenging any discipline imposed and building his or her own supportive documentary case. Should legal confrontation later ensue, the employee will have the ability to contest the negative inferences the employer has drawn.
If faced with discipline, employees should consider the following:
• While discipline short of dismissal is not usually the subject of a court claim, employers don’t have an absolute ability to administer punishment with a free hand. When FRI Corp. chose to suspend marketing executive Christina Carscallen following a botched trade show, she was more than nonplussed. She sued for constructive dismissal, alleging that her unpaid suspension was tantamount to her dismissal. Justice Echlin, who wrote that decision, noted that without a written or implied term permitting a disciplinary suspension without pay, employees who don’t receive due process may be deemed to have been dismissed instead. Carscallen was awarded one year’s salary.
• Discipline must be proportional to misconduct. Since the Supreme Court overturned the dismissal of a senior executive who lied to his company, Canadian employers have been required to examine the entirety of the employee’s history at work to assess whether a lesser form of discipline would have been more appropriate. While this is unfortunately sometimes more of a function of the judge that happens to be drawn than the particular facts of any given case, one point is clear: Employers who overreact to alleged misconduct at work will, more often than not, find their names on a statement of claim.
• An employer can dismiss an employee for poor performance, but seldom does this provide an antidote for paying severance. Court cases clearly indicate that if they want to rely on performance as grounds for dismissal without pay, employers owe a duty to provide employees with the opportunity and means required to improve. Progressive warnings must be issued that clearly identify the areas of concern. When such warnings land with a thud on an employee’s desk, she should respond by pointing out that the standards expected are not objectively reasonable, beyond her capability, went uncommunicated, or that suitable instruction and supervision were never given to assist in meeting those standards.
• As companies are entrusted to investigate and then administer discipline at their own prerogative, where serious flaws in the process occur, the decision to terminate may not be supported by the courts. Courts require employers to conduct a flawless investigation, if they are relying on the outcome as grounds for dismissal. Employees faced with allegations should specifically ask for an opportunity to respond and offer an explanation, regardless of whether or not it is sought.
While the decision to fire may have already been made, if nothing else, the explanation may pay dividends in any subsequent severance pay negotiations.
Daniel A. Lublin is a Toronto employment lawyer practising exclusively in the law of wrongful dismissal. He can be reached at firstname.lastname@example.org through his website, www.toronto-employmentlawyer.com.