Employers believe, when it comes to wrongful dismissal, employees enjoy all the advantages. It is their greatest misapprehension! Worse, it prevents them from taking the steps necessary to win.
Employers actually hold most of the cards. They know who they wish to fire, when they wish to fire them, and have the necessary witnesses at their instant disposal. Moreover, building up a case, albeit painstaking, is not difficult.
Here are the ten steps to winning your cases:
- 1. Advise the employee of your required standards of performance. These standards should be developed in the initial interview, through the position description, in performance evaluations and be detailed in any written warning;
2. The warning letter must particularize all respects in which the employee does not meet the company's standards. In preparing this letter, you must demonstrate that the employee's level of incompetence is extremely serious. Some judges have stated that incompetence has to be so serious to be cause that it must border on willful conduct. But if sufficient warnings have been provided, the level of incompetence need not be quite as serious;
3. The warning letter must not only explain the respects in which the performance was deficient but detail why the employee was personally responsible for these problems;
4. You must advise the employee specifically that his or her job is in jeopardy. You do not wish to have the employee later argue that he or she believed that the letter was provided in the spirit of training or as suggestions for improvement, rather than as a "warning";
5. You must delineate precisely what is required to improve the job performance;
6. The employee must be provided with a reasonable opportunity and specific time frame in which to improve. More time is required to improve for a longer service employee or one who performed particularly well in the past;
7. You must follow up, preferably on a weekly basis, with the employee's attempts to improve performance. I recommend a scheduled weekly meeting with the employee's supervisor;
8. You cannot leave the employee out on a limb without the assistance necessary to improve. In your letter of warning, detail the help you will provide. Otherwise, an employee can argue that he or she was never capable of meeting the employer's standards but that it did not provide the requisite support;
9. Consider what excuses the employee might make for the poor performance. Eliminate these in advance. You do not wish to learn, for the first time in court, that the poor performance precipitating the termination was caused by, for example, marital breakdown, psychiatric problems or a death in the family. The court will look at such evidence as mitigating factors and may, as result, determine there to be no cause for discharge. Thus, in the warning letter, ask the employee if there are any personal or other temporary difficulties. Offer assistance if problems are identified.
For example, you should believe that the poor performance was attributable to alcohol or drug use, suggest to the employee that, you will send them, at your expense, to a rehabilitation clinic. If the employee does not take you up on that offer, he or she cannot later rely upon their addiction as a defence at trial; and
10. If you are building a case for cause based on incompetence, do not act inconsistently with your position. For example, do not provide discretionary salary increases or positive evaluations!
Generally, one warning is insufficient to justify summary discharge. You should provide a series of progressively more serious warnings until there is no doubt in the court's mind that this employee clearly understood what was required but was either incapable of or unwilling to make the necessary changes.
For more information or to arrange a telephone consultation or a visit to our offices in Toronto, Ottawa or Vancouver, please visit http://www.canadaemploymentlaw.com.