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With Cause Terminations Q&A with Melissa Rico, Employment Lawyer
Firing is one of the most unpleasant aspects of HR, and there have been many high-profile cases of disputes over terminations in the media lately. Legalized marijuana, economic uncertainty, changes to immigration policies and revised policies around workplace harassment will keep terminations in the spotlight for the foreseeable future.
Ensuring your team understands how to navigate the differences between terminations with and without cause protects your employer and ensures that you’re also upholding all of your employee’s rights as well.
In our recent webinar focused on terminations with cause, Melissa Rico, a partner with Carbert Waite LLP, used specific case studies to illustrate some of the challenges in cause terminations, and provided practical information to aid HR professionals in determining how, why and when to proceed with such terminations. This blog post provides a summary of the scenarios and some interesting questions that came up. Catch the webinar recording here.
This webinar and recap provide a useful overview of HR law topics, but they aren’t meant as legal advice and you shouldn’t rely on them as such. Carbert Waite is a trusted partner of CPHR Alberta, and you should contact them directly if you have questions about this post or require further clarification.
Scenario 1 – Off-Duty Conduct
We watched this video of an intoxicated doctor attacking an Uber driver in Miami, Florida. Her employment was terminated after the video was released on social media and subsequently went viral. Some interesting questions that came up included:
Q: If this wasn't posted on social media, this would have probably never gotten to this point, if the public didn't have such reaction, would the employer probably fired her? If it's not stated in the contract that your actions beyond your work hours play a factor, could this really be a just cause? how would it be any different if you are having a physical altercation due to a divorce, employees don't get fired, in fact you as the employer now have an obligation under bill 17 so really did the employee get fired because of the huge presence of public reaction to the video.
A: The main issue in analyzing matters such as this one is whether the employees' conduct detrimentally affected the employer's reputation.
Q: Would the result have been the same in Canada?
A: This is questionable in Canada. Issues such as these are very fact dependent. A good place to start an analysis would be to assess how and to what extent the employee's conduct detrimentally affected the employer's reputation.
Scenario 2 – The Incompetent Employee and the Resulting Performance Improvement Plan (PIP)
An employee is not performing their technical skills up to par, their manager verbally warns them, and then issues a written warning one month later. No timeline is provided and no clear instructions are given. Upon later assessment, the employees’ skills hardly improve. Is this just cause for termination of employment? The result is, no, it’s not cause for termination of their employment.
Q: I've been told by a lawyer that we need to have discipline events on record prior to a PIP; would you agree?
A: It depends on the conduct of the employee. Generally speaking, you should have some warnings before instituting a PIP. However, this does depend on the severity of the improper conduct. Remember that a PIP should be instituted only where you want to keep the employee. Therefore the conduct in question should be remediable.
Q: What do you do in the case you don't want to keep that employee?
A: In the context of a PIP, you should only start an employee on a PIP if you want to keep him or her. If you do not, you should seek legal advice to determine a reasonable notice of termination and terminate their employment as such. You should also check your employment contract for any termination clause.
Q: What happens if you have an employee who is incompetent in their current position, but they are a great fit for your organization, and you have a lower-level position available that they would excel at. Do you still put them through a PIP? Can you legally demote someone?
A: To demote someone legally, you have to provide him or her with the same amount of notice of the change to their position that you would if you were terminating his or her employment. It would also be advisable to err on the side of caution and provide notice in the high range of reasonable.
Q: Our policy now on terminations for cause based on performance is to treat them all as termination without cause. This to avoid the need for PIP, which in my experience has never worked out well, just added internal work and also some pain for the employee. Is this highly uncommon?
A: No, this is very common. A PIP should really only be used if the employer wants to keep an employee, otherwise, you are right, it is often preferable to provide reasonable notice or pay in lieu of notice. However, if the conduct in question that leads to a cause termination is egregious, we would not recommend providing notice of termination or pay in lieu of notice.
Q: Is a performance improvement policy reasonable to only have one level of written performance improvement plan? (i.e. first level coaching, 2nd level documented discussion, third level formal PIP as final written warning).
A: The key to a successful PIP is to provide adequate time for improvement, provide clear and tangible expectations of improvement, and to make sure there is consistent and good communication between the employer and the employee where the employee's performance under the PIP is reviewed. It is also important that the employer sticks to any commitments made regarding follow-up and provision of resources. Last, it is important that the consequences of not performing under the PIP are clear from the outset.
Q: How do you terminate an employee who is part of a labor union if you don’t want to go to a PIP (i.e.: don’t want to keep the employee)?
A: You have to follow the collective agreement.
Scenario 3 – Harassment in the Workplace
An employee is accused of inappropriate sexual conduct with two employees, once at a party, once at a company retreat. Two sub-scenarios are described, and two different outcomes are reached.
Is this cause? The answer is, it depends - you need to start an investigation to determine what the appropriate course of action is, and stick to your company policy on harassment in the workplace.
Q: When conducting an investigation do you need to provide a copy of the written complaint to the respondent and the written response to the complainant?
A: This depends on what your investigation policy requires. It is important that an employer follow their policies.
Q: What if the party was at his house and the harassment happened there? Same result? Is this cause?
A: Yes, if the harassment occurred between two co-workers, it should be taken seriously regardless of where it occurred.
Q: How do timeliness of an Investigation impact a Just Cause termination?
A: An investigation must be seen as fair and reasonable, so if it is too short and does not allow time for a proper investigation, timelines may be an issue.
Q: To establish just cause when “there are many cumulative causes” is there a time factor between incidents. How far back can you go to link all the incidents together to justify just cause?
A: Generally there is no time period within which a set number of incidents need to occur. When evaluating whether an employer has grounds to terminate an employee for cause, the overall time period and improper behaviour will be assessed together along with the actions of the employer in response to the improper behaviour (warnings, discipline, training, meetings with management).
Scenario 4 – The Disabled Employee
A small family company operates a warehouse, all positions have some element of physical lifting, an employee hurts her back and goes on disability. After 20 months the employer is provided with limited medical evidence and it’s uncertain whether she will be coming back, and if she does it will likely be a modified role. Is this just cause? No – you’ll be ending the employment relationship on frustration, not just cause.
Q: How about an employee who was on WCB, failed to follow the RTW plan, got his case closed & came back to work. He then claims to be injured again & went back on WCB, this happened 2 more times - 3 in total. This last time, the case was closed again for not following the RTW plan. Now the employee has not been to work since being certified to return to full duties. What does the employer do?
A: At some point, an employer can consider that the employee has abandoned his employment. The employer should provide warnings to the employee that failure to show up will result in the employer deeming the employee to have abandoned his position.
Q: Question on frustration and those 2 cases, the conversation with employment standards left an unclear response, but if you called human rights the officer would tell you that the employee would have a case because of the "physical disability" and there is no time frame in the act. So my question is why would termination take place, especially for the employee undergoing cancer treatments, wouldn’t Human Rights see that as a physical disability?
A: There is a 1 year limitation period to file a human rights complaint in Alberta. Generally speaking, if the employer can demonstrate that it is unable to accommodate to the point of undue hardship, then taking the position that an employment contract has been frustrated will not violate human rights.
Q: We have an example of accommodation where the employee only shared the need after we had terminated their employment. The employee is stating we cannot fire them because of it. Do we have grounds to stand by our termination if the employee didn't share the accommodation request prior to our termination meeting? Would this lead to frustration?
A: This would depend on the accommodation and whether it was reasonable for the employer to determine that accommodation was required or whether it was reasonable that the employer should make inquiries as to accommodation. In other words, did the employer know of the need for accommodation (Even if not explicitly stated?)
Q: With job abandonment and returning to work after someone is cleared from disability, are we responsible to trying to get in contact with the EE or can we terminate him for job abandonment without trying to make contact?
A: It would be advisable to contact the employee and communicate with him or her of the employer's expectation that he or she will return to work and if he or she does not (after a reasonable amount of time), that the employer will consider the employee to have abandoned his or her job.
Other Questions on With Cause Terminations
Q: When a cause termination occurs, what are we legally allowed to share with the remaining employees or clients? i.e. in a childcare situation can we tell parents that an employee was terminated for cause..?
A: Unless legislation requires you disclose information, an employee must adhere to privacy legislation when it comes to disclosing information relating to a cause termination. Generally speaking, this means an employer may not share any details of the termination.
Q: There is sometimes a fear that people will go get legal counsel after termination. In reality how often does that really happen? Is there a legal cost that discourages individuals from going that route? Generally....from a lawyer perspective how does that process work?
A: An employer should not be concerned about an employee seeking legal counsel after a termination if they provided the employee with a reasonable severance package. If this is done, and the employee seeks legal counsel, he or she will likely receive legal advice confirming their severance package is fair.
Q: Do you believe that it would be just cause to terminate an employee who tests positive for marijuana in a post-incident test when the employee is in a safety sensitive role when the policy states a zero tolerance for drug and alcohol? In this situation the employee has a medical prescription that they did not enclose to the employer.
A: It depends on what your policy states and when your policy was put in place in relation to the employee (did the policy come into place after your employee was hired?). Another consideration is whether the employee was ever asked or provided the opportunity to disclose his or her prescription.
Q: Could termination clause be specific in a policy instead of a clause in the contract?
A: Ideally, termination clauses are in an employment contract which the employee signs at the outset of their employment. If you have a termination clause in a policy, the employer must ensure that the employee is made aware of the policy, and if it is a new policy, that the employee is provided with notice of its addition.
Q: What is the process to have employees sign a new employment contract with a restrictive termination clause (no common law severance)?
A: You need to provide notice of the change in the contract provision. The notice amount would be similar to that for reasonable notice for termination. I would recommend the employer err on the side of caution and provide the high spectrum of reasonable notice.
Q: How to discipline behavioural issues i.e. ongoing personal conflict between two employees of equal roles and culpability?
A: A first step would be to have a discipline meeting with the employees and see if you can determine the root of the problem. It may be that you need an investigation. Additional steps may be to require training or behavioural management training of some kind.
Are you dealing a scenario similar to the one above? Listen to the webinar recording to get the full picture, and get the help you need from an employment lawyer.