History Of Warnings May Be Needed To Terminate An Employee With Cause feature image

History Of Warnings May Be Needed To Terminate An Employee With Cause

Employment plays a huge role in the lives of most people. A job is where people spend a significant amount of their time, and a job provides the money and benefits that most people need in order to afford food, shelter, and other things. Because of the significance of a person’s job, terminating them from it is something that has to be done carefully, and thoughtfully. While employers don’t have an obligation to keep someone employed, the ability to terminate someone with cause (and therefore without pay in lieu of notice) can only be done after specific steps have been followed, or if an employee’s conduct is reprehensible enough to warrant immediate dismissal. The failure of an employer to take these steps can make it difficult to terminate an employee. This was illustrated in a recent decision from the Court of Queen’s Bench of Alberta.

Employee fired without notice

The employee had worked for the employer beginning in 1978. At the time he was fired, in December 2015, he was 65-years-old and was employed as a shop foreman responsible mostly for vehicle-mounted air compressor service and repair. This department was responsible for 60-70% of the employer’s revenue.

The president of the employer stated that in the time leading up to the termination, there were continuous issues with repairs and services as well as inadequate and incomplete. The employer said this was costing them $5,000-$10,000 each month.

The president of the employer said that these issues had been raised with the employee both verbally and in writing. However, there was no evidence given to the court that showed any written warnings were provided. The employee denied any written or verbal warnings were provided to him. Though there was no evidence any written warnings were given, the court did note that if they were provided, it would have been over 1.5 years before the termination.

Employer adds there were derogatory comments made in the workplace

The employer, who had been seeking summary judgment to dismiss the employee’s lawsuit, said that in addition to the performance issues, the employee had also been making derogatory comments to other employees as well as customers. These comments were described as racist in nature.

In fact, one of the employer’s VPs stated that he witnessed the employee making derogatory comments to and about other employees and customers. He said such instances were “ongoing, and frequent.”

The court found these allegations to be much more serious than those related to his performance. The court noted that this type of conduct falls into a category so unacceptable that no warning is necessary.

However, there was once again a disagreement about this between the litigants. The employee unequivocally denied any of the behaviour he was alleged to have displayed. In addition, the court was not made aware about how close the timing was between this behaviour taking place and his actual firing.

It was clear that either the employee or the employer was not being honest (or realistically, the truth may lay somewhere in the middle). The court stated that evidence is needed in order to get to the bottom of it, though. As such, the matter was not appropriate to be handled via summary judgment. As a result, the matter will have to be heard via a trial.

While we don’t know how this issue is going to be resolved we can say with confidence that if the employee’s performance had been subject to written warnings, and had the employer undertaken proper record keeping, they may have been able to move the matter through summary judgment.

To make an appointment and get advice about an employment matter, including wrongful or constructive dismissal claims, call 1-800-480-3534 or contact us online. We represent clients in Calgary, throughout Alberta, and across Western Canada.

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