The Rocky Road to Dismissal – Employees must combat warning signs

Date: 2007
Author: Daniel A. Lublin
Publication: Metro
With no legal entitlement to continued employment, Canadian employees decry that the law of dismissal favours their employer. Employers, however, don’t have a magic bullet for liberating themselves from unsatisfactory employees; most mistakes are made by the employees themselves.
Here are the top five errors that employees can make in response to discipline at work — and what they ought to do instead:
Performance Appraisals:Employers disposed to divorce an employee usually gather ammunition by creating a paper trail documenting any and all allegations and concerns. If the employee then wishes to go to war, he’ll have a mountain of evidence to overcome. For maligned employees, I often recommend that they prepare for the battle by building a supportive documentary case — in essence, challenging a negative or unjust performance appraisal. Then, should legal confrontation ensue, the employee has the ability to contest any injurious inferences drawn by a series of unsatisfactory appraisals. Employees should always, therefore, document a response to a challenged appraisal, in writing, and request that this response accompany the negative appraisal, in their human resources file.
Workplace Investigation:An investigation can be a double-edged sword. To rely upon misconduct as cause for dismissal, Canadian courts require employers to conduct a flawless investigation before condemning an employee. But employees don’t get to abuse due process; they are legally required to respond truthfully to questions asked in an investigation. Not only does a refusal to answer questions raise an inference that the alleged misconduct actually occurred, but an employer may uncover other skeletons in that employee’s closet, justifying discipline, that it hadn’t even been seeking. Employees ought to retain counsel to protect their position when serious allegations are raised.
Poor Performance:An employer can dismiss an employee without notice for incompetence or poor performance. This does not mean that an employee can be dismissed simply because she is underperforming. Court cases clearly indicate that employers owe a duty to provide that employee with the opportunity and means required to improve performance. 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. Although dismissal may be inevitable, if nothing else, her resistance may pay dividends in any subsequent severance-pay negotiations.
Probation:Employees are often threatened with being placed on “probation” if performance does not improve. These threats are mostly meaningless. Other than auditionary periods at the beginning of a new job, probationary status cannot unilaterally be imposed; progressive discipline must, instead, be applied. And, if such a threat accompanies an unpaid suspension or reduced status, the employee’s name may very well end up on one of my statement of claims.
Disciplinary Letters: Numerous warning letters fired off by the employer or its lawyer does not provide it with just cause, or an antidote to paying severance – only the particular facts and circumstances of an employee’s delinquency does. Anything else is irrelevant.