The Problematic Employee

Employment and Labour

One of the most difficult tasks for an employer is the termination of an employee who cannot, for a variety of reasons, fulfill his or her job requirements. Generally, these employees cannot follow directions, achieve performance objectives and/or display a poor attitude in the workplace. The difficulty that arises is that, by law, an employer has an obligation to provide reasonable training and make attempts to rehabilitate the problematic employee’s job performance before the employer can terminate the employee, without liability arising from the termination.

If an employer does not properly provide an employee a chance to rehabilitate his or her job performance and elects to terminate the employee, the employer may expose itself to a wrongful dismissal claim from the employee. There may be exceptions to this principle for new, probationary or short-term employees because of their lack of service to the employer.  The exception is based on the notion that an employer does not have the same degree of obligation to a short-term employee as it would to an employee who has provided service for an extended period of time. Reasonable Notice The British Columbia Employment Standards Act imposes a mandatory minimum notice period once an employee has worked a minimum of 3 months, as follows:

  • 3 months continual service, 1 week of notice
  • 12 months continual service, 2 weeks of notice
  • 3 years continual service, an additional week of notice for each additional year of service to a maximum 8 weeks.

An employer can provide written notice of the termination or pay in lieu of notice.  An employer who provides written notice would continue to have the employee work for it during the notice period. However, the courts have determined that the Employment Standards Act is a minimum guideline only.  In determining the appropriate notice period, at common law (i.e. law which is made before the courts), a court will take into account several factors which include:

  • The employee’s length of service with the employer;
  • The employee’s age;
  • The nature of the employee’s employment and the work performed; and
  • The chances of the employee finding comparable work in the marketplace.

The maximum notice an employee can be entitled to, without aggravating circumstances, is 24 months.  A rough rule of thumb, which should not be taken to be determinative, is that an employee is entitled to approximately 2 to 4 weeks of notice per year of service. Just Cause If an employee is fired for “just cause” an employer is not obligated to provide the employee any notice of the termination.  An employer bears the onus of establishing cause for dismissal at court, and it can be difficult to do so.  Usually, cause is reserved for the most egregious misconduct such as theft, repeated dishonesty, and serious sexual harassment. The problematic employee is one that although not living up to the employer’s expectations has not acted in a manner which would justify cause without an employer demonstrating that it has taken all reasonable steps to rehabilitate the employee’s performance. To terminate the problematic employee for cause, an employer must establish the following:

  1. The employee was given express and clear warnings about his or her performance and that if the employee’s performance did not improve, he or she would be terminated;
  2. The employee was given a reasonable opportunity to improve his or her performance after the warning was issued.  In so doing, the employer provided clear reasonable instructions and assistance in attempting to rehabilitate the employee’s performance;
  3. Notwithstanding the foregoing, the employee failed to improve his or her performance;
  4. The cumulative affect of the employee’s conduct would prejudice the proper administration of the employer’s business.

You will appreciate from the foregoing that to dismiss an incompetent employee for just cause, an employer must follow a regimented course of action. In order to do so, an employer should do the following and document each step in writing:

  1. Clarify job expectations with the employee.  It is permissible to hold employees accountable for poor performance as long as the standards related to their performance are clearly communicated to employees.  An example of such a standard is a written job description with specific and reasonable performance goals;
  2. Give a problematic employee the training and supervision he or she needs to improve the performance;
  3. Set a period of time (a performance review period) for an employee to improve upon his or her conduct by setting reasonable goals which an employee could achieve if they improved their performance;
  4. From the outset of the performance review, provide the employee a written warning that sets out the employee’s previous conduct and why it did not meet the expectations or goals set by the employer.  Further, the employee must be warned that if their performance does not improve during the performance review, it will result in the employee’s termination;
  5. Once the review period ends, a decision must be made.  If the employee has improved his or her performance then the performance review has met its objectives.  If not, the employer is capable of firing the employee for just cause and will most likely be successful if the employee sues for wrongful dismissal.

A caution for those employers who decide that instead of firing the employee after a performance review that they would prefer to give the employee an additional chance to improve their performance.  Thereafter, if the employee does not improve his or her performance it may be that the employer cannot rely on the previous performance review because of the legal principle of condonation. The doctrine of condonation requires employers to take care in how they administer warnings to problematic employees.  If the employer gives express warnings to an employee that he or she will be fired unless his or her performance improves, but then fails to carry through by invoking dismissal when further incidents of inadequate performance occur, the prior warnings may be regarded as spent and the employer will be taken to have condoned the performance deficiencies subsequent to the warning. The above is a cursory summary of the law. As you will appreciate each circumstance can differ on the facts involved in each particular case.  We encourage you to consult with a lawyer should you have any questions or concerns relating to the administration of employees in your business.

Christopher Martin
Partner – Labour & Employment Law
Lindsay Kenney – Vancouver Office

(see article as it appeared in the BC Paralegal Association – Summer/Fall 2011 Newsletter – Volume 42 Issue 3 – attached PDF)