Legalese: April 2015

This article relates to non-unionized work environments. Where there is a union, obviously the employer must abide by the operative collective agreement.

Keep everything in writing. This may seem straightforward, but it is imperative. Every time you discipline an employee it should be documented in writing. Full details of the situation should be outlined, with copies of any relevant documents. Your employee should be asked to acknowledge having been disciplined and having been afforded an opportunity to be heard during the process.

Make the punishment fit the crime. If you try to punish someone too harshly for a relatively benign offence, you run the risk of a legal complaint or alienating your employee (or both). If you do not punish your employee severely enough, you run the risk of the person failing to appreciate the severity of the offence. Moreover, when they commit the same or similar offence in the future, you will be limited to only an incremental increase of the punishment.

Punishments should gradually increase in severity. If your employee is late for work and you choose to reprimand him or her, the next time they are late you should increase the severity of your response.

Be fair. Taking an approach with one of your employees which is unfair or unreasonable will not only potentially land you in legal difficulty, but is something that your other employees will undoubtedly observe. This can lead to employee dissatisfaction and poor workplace morale.

Do not avoid confronting problems. If you choose to bury your head in the proverbial sand, you are giving your employee the argument that you condoned the inappropriate behavior.

Have an employee manual. If your company has an employee manual, then everyone is working off the same page and will expect to be punished when a rule is breached.

In general, however, if you are wondering whether a particular transgression warrants a certain type of discipline, consult an attorney licensed to practice law in your province.

Termination
Termination is the ultimate form of discipline. It means the end of the employment contract. If you wrongfully terminate someone without cause, your company will owe the departed employee money in the form of pay in lieu of notice, among other things.

When an employee is terminated they often feel slighted and often pursue a legal complaint. If you follow proper protocol and the employee was justifiably dismissed, you can limit your risk from such action.

When an employee has been terminated without cause by his or her employer, there is an obligation to provide the terminated employee with “reasonable notice.” The appropriate length of such notice will often boil down to the length of time worked and the position held by the employee. A court will be looking to determine the reasonable amount of time it would take for the terminated employee to find comparable work elsewhere.

Age of your employee is also a critical factor. If, for example, your office manager of 30 years was now 63 years old and not computer savvy, it will be very difficult for him or her to find comparable work (at comparable pay) elsewhere. In such a situation, the length of reasonable notice would be relatively long.

A matter of wrongful dismissal that is often litigated is whether the employee was terminated with or without cause. The only time an employee has a right to pursue a claim for reasonable notice (or for payment in lieu of that notice) is when the employee has been dismissed without cause. Proving that you had legal cause will obviously depend on the specific facts of each case. It can be generally said that cause will be found when misconduct committed by the employee goes to the very root of the employment contract. This misconduct could possibly, but not necessarily, come from a single incident such as theft of company valuables. It could also arise from multiple events that go to the root of the employment contract, such as chronic lateness or unexplained absences. This latter fact serves to underscore the importance of detailed, written disciplinary records of your employees.

The decision to terminate an employee cannot be made lightly. It is the most serious form of discipline, and a last resort for employers. If you choose to terminate one of your employees for cause, the onus will be on you to demonstrate that the decision was justified. Courts will award a terminated employee monetary damages if you terminate improperly. Moreover, you will be faced with legal fees and potentially court costs which could exceed the value of the notice period paid to the departed employee.

If you are planning on terminating one of your employees, it is highly recommended that you only do so after consulting with a lawyer in your province who practices in the area of employment law. Employment law varies from province to province, so choosing a lawyer in your own jurisdiction to assist you in meeting your legal obligations is crucial. As well, the facts of every case are different and it is impossible to provide any sort of thoughtful advice without the benefit of the full factual matrix.

Deryk Coward is a partner at D’Arcy & Deacon, a Winnipeg law firm. He is legal counsel for the Canadian Rental Association.