Class 14 - Discipline & End of Employment Flashcards
Employee Discipline
Purpose is to correct
If for performance issues, employee must have had an opportunity to improve first
Failure to discipline suggests behaviour is acceptable
Delaying discipline makes it difficult to justify actions if challenged
Foundations of a Fair and Just Disciplinary Process
“Poppin’ Calves Prevent Rolling ankles”
Progressive discipline: warning(s), suspension(s), termination
Corrective actions: clear explanation of issues, chance to improve
Rules and regulations: clear expectations of requirements and acceptable behaviour
Procedural fairness: know case, to be heard, judged fairly, given reasons
Progressive Discipline sequence
Verbal Warning
Written Warning
Suspension
Termination
Positive Discipline
Co-operate endeavor
Employer does not impose discipline
Employer takes responsibility for correcting behaviour
Termination occurs when employer
- dismisses or stops scheduling employee
- lays off employee for period exceeding temporary layoff
- constructively dismisses employee & they resign within a reasonable period
Dismissal Without Cause
In most jurisdictions, an employer may dismiss non-unionized employees without cause, and without explanation, as long as it meets contractual obligations, and provides proper notice OR payment in lieu of notice
- Employment Standards set out minimum notice
- Common law determined reasonable notice
- Contract may set out alternative termination provisions
Termination: Employment Standards
Statutory notice period minimums are defined in Employment Standards legislation (1 week of pay for every year of service up to 8)
Can’t terminate employees for exercising statutory rights (I.e. ESA, human rights)
Severance pay is compensatory for long-term employees in certain organizations
There are exceptions to notice requirements (I.e. mass terminations)
Termination: Common Law
Employment standards provide MINIMUM obligations, but under common law employees may be entitled to more under “reasonable notice”
Based on Bardal factors
Termination: Contracts
May contain different provisions (ESA mins still apply)
If no contract, common law still applies
Recent ruling have required more generous provisions; best to be fair and somewhat generous
Dismissal with Cause: When does Just Cause occur?
Just Cause occurs when employee fundamentally breaches employment agreement that employer is no longer bound by common law futy to provide reasonable notice or pay in lieu
Note: in unionized environments and some jurisdictions, just cause is required
Just Cause requirements (non-union)
“Boys Proposed Punishments are Not Proportionate to Crime”
Burden of Proof Proportionality Progressive Discipline No condonation Procedural Fairness Contextual Approach
Common Implied Employee Obligations
Obey lawful orders of employer Cooperate in advancing employer’s commercial interests Not to compete To protect confidential information Perform competently and safely Be honest Come to work schedules, and on time Not to be intoxicated Provide reasonable notice of resignation
Establishing Just Cause
“I had 5 Happy Days fishing COD”
(I5 - HDCOD)
2 broad categories
> 1. Problems related to job performance
> 2. Misconduct
Including:
- Incompatibility
- Incompetence
- Insolence
- Insubordination
- Intoxication
- Harassment
- Dishonesty
- Culpable Absenteeism and Lateness
- Off-duty conduct
- Disobedience
Managing Termination
Order & Discipline And Act Fun
Best Practices:
- Organization Policy
- Documentation
- Act in Good Faith (“Good Faith Dismissal” from SCC Case)
- ADR and Appeal Process
- Fairness and Due Process
Wrongful Termination claims
Kids leave camp because they are
Acting Vicious Violent, or Are Vociferous
Acted in bad faith Violated a relevant law Violated employment contract Alleged, but did not show, just cause Violated own dismissal process
