16th September 2019
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Dismissal for Poor Performance: Don’t Go Paperless

A Common Situation

Pretend you have a full-time employee who’s missed several important business meetings. They’re always late for work and they aren’t meeting targets or expectations.

Do you have just cause to fire them?

Well, it depends.

Dismissal for poor job performance is a tricky ground to navigate, mainly because the details of each situation is different. In the above example, the employee could have been entitled to receive payment in lieu of notice, often called severance, depending on how the employer handled the situation.

Sometimes, what an employee is entitled to is more than what Employment Standards dictate. Which is why it’s important to make sure you have grounds for all employee dismissals, especially regarding poor performance.

Wait, what is just cause?  

Just cause describes the ability for an employer to dismiss an employee without having to give notice or payment in lieu of notice. Just cause dismissals also do not require any notice to be given by the employer.

What defines just cause?  

This is trickier to define as it depends greatly on a number of factors. The simplest way to dismiss an employee with just cause is on gross grounds, also known as gross misconduct. These cases are usually fairly easy to recognize:  the case of gross misconduct – intoxication at work, fighting or physical abuse, theft, serious breaches of health and safety rules, harassment, discrimination, and indecent behaviour to name a few.

Outside of gross grounds or gross misconduct, it’s harder to identify just cause. When considering dismissal for poor job performance in particular, it’s necessary to consider several details, including:

    1. Was the level of job performance well-defined and well-explained? In other words, did the employee know – on a deep level – the job that they were required to do?
    2. Was the employee provided training, mentoring, and supervision opportunities so they could meet these standards? If the employee isn’t trained to meet this standard, it’s considered unreasonable to expect them to meet said standard.
    3. Were warnings given? Were opportunities provided for the employee to improve? The employees need to know they aren’t meeting expectations. They also need time and resources to make the necessary improvements.
    4. Did they know their job was at risk? The consequences of inaction must be made clear to the employee.

So, how exactly should an employer handle dismissals for poor performance?

The answer is simple: with paper. Keep paper records of everything, including the full description of their responsibilities and performance expectations, written warnings, training opportunities.

The more paper you have, the better case you have for just cause. Being able to prove that the employee had a full understanding of their job, had reasonable chances to improve, and were given time and resources to make that improvement greatly benefits your case.

It also avoids misunderstandings. Verbally conveying this information can easily lead to misinterpretation. Well-written, concise explanations and warnings ensure both parties have the perception of the situation and its potential consequences.

Why so much paper? Couldn’t an employer just show the poor performance?

Consider it this way: as an employer, you chose to hire that specific person. Arguably, you had a reasonable understanding of their skills, capabilities, personality, and experience. If you hired them based on that knowledge, then you’ve personally endorsed them. You’ve said they’re capable of the job.

If you’re now looking to fire the same person you “vouched” for, then you need to prove what has changed. Proving that change requires documentation.

And the best documentation is paper.

What happens if an employer doesn’t have just cause and dismisses an employee?

That also depends on a number of factors. If neither just cause nor an agreement outlining notice of termination or of the term exists, the employer is obliged to provide the employee with reasonable advance notice of termination or a payment in lieu of.

Essentially, the Court will want to put the employee in the same position that they would have enjoyed if reasonable notice had been given. What is considered “reasonable” is case-specific, but factors to consider include:

    • How long they worked for the employer
    • The type of industry they’re in
    • The type of work they completed
    • Employee’s age
    • Their job title
    • Their responsibilities (manager vs. employee)
    • The employment market

Questions?

The best course of action is to talk to one of our experienced lawyers to ensure you’ve completed the appropriate steps for a just cause dismissal.

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Written by Amy Diaz