Count to 10 (or more) be­fore fir­ing em­ployee

Key steps in ter­mi­nat­ing for cause

National Post (National Edition) - - FINANCIAL POST - HOWARD LE­VITT Fi­nan­cial Post

PWork­place Law atience, it is said, is a virtue. This holds par­tic­u­larly true in em­ploy­ment law. There is no short­cut to build­ing a case for dis­missal with cause. Em­ployer im­pa­tience comes with a hefty price tag.

Utopia Day Spas & Sa­lons op­er­ates sev­eral B.C. lo­ca­tions. For ap­prox­i­mately 11 years, it em­ployed Jennifer Cot­trill as an es­theti­cian at its Lan­g­ley branch. Con­sid­ered com­pe­tent, Cot­trill re­ceived pos­i­tive feed­back from her depart­ment man­ager, Dora Bonarek, as well as its prin­ci­pal, Mr. Abu-Ulba.

But she was hardly per­fect and was the sub­ject of a num­ber of client com­plaints. Her record over the years also in­cluded warn­ings for not uni­formly com­ply­ing with com­pany poli­cies on call­ing back clients and con­firm­ing her aware­ness of ser­vice pro­to­cols.

When Bonarek left Utopia, Abu-Ulba re­viewed the depart­ment’s per­for­mance, in­clud­ing Cot­trill’s per­son­nel file. He was taken aback. Given her years of ex­pe­ri­ence, train­ing and warn­ings, Abu-Ulba con­cluded that Cot­trill had been un­der­per­form­ing over many years and should have been do­ing a much bet­ter job in her sales and her at­ti­tude to her du­ties. He de­cided she would be given one fi­nal chance and a “ter­mi­na­tion no­tice”: over a three-month pe­riod, she had to show two suc­cess­ful months or be fired.

Shocked by what she per­ceived as the about-face in man­age­ment’s at­ti­tude, Cot­trill vig­or­ously ap­plied her­self to meet­ing the var­i­ous sales and per­for­mance cri­te­ria. But she came up short in man­age­ment’s as­sess­ment in her sales and de­meanour and was sum­mar­ily ter­mi­nated for cause. Cot­trill sued for wrong­ful dis­missal.

Utopia ar­gued that, un­til Bonarek had left their em­ploy, the owner was un­aware of Cot­trill’s per­for­mance, and that she had had am­ple warn­ing of her de­fi­cien­cies and that her at­ti­tude was un­ac­cept­able.

Jus­tice Wendy Har­ris of the Bri­tish Columbia Supreme Court ut­terly re­jected those de­fences. Se­nior man­age­ment could not plead ig­no­rance of per­for­mance is­sues if Cot­trill had re­ceived no real warn­ing from Bonarek that her job was in jeop­ardy. Man­age­ment was bound by what their ju­nior man­ager had done, no mat­ter how lit­tle they now claimed to know (or ac­tu­ally knew).

Sig­nif­i­cantly, the three­month no­tice pe­riod was de­ter­mined by the court not to be a gen­uine ini­tia­tive to help­ing Cot­trill turn around her per­for­mance. In­deed, by all ac­counts, she made con­sid­er­able strides to meet man­age­ment’s new de­mands. She was promised that, if she im­proved in two of the three months, she would re­tain her po­si­tion. Af­ter do­ing just that, she was still ter­mi­nated.

The dis­pro­por­tion­ate and un­war­ranted al­le­ga­tions of the com­pany prompted the court to award not only wrong­ful dis­missal dam­ages but ag­gra­vated dam­ages as well. The court’s mes­sage to em­ploy­ers is un­equiv­o­cal: if an em­ployer wishes to ter­mi­nate for cause, there is no sub­sti­tute for as­sur­ing that the fol­low­ing rudi­men­tary steps are taken:

if an em­ployee is to be held ac­count­able for their con­duct, be spe­cific about the ex­pec­ta­tions. Utopia was crit­i­cized by the court for fault­ing Cot­trill for a poor at­ti­tude but not defin­ing what they meant.

that means giv­ing the em­ployee a gen­uine chance with enough time and sup­port to meet the stan­dards ex­pected of her.

the court re­lied on state­ments by a mem­ber of man­age­ment that the die was cast to cut Cot­trill’s po­si­tion for fi­nan­cial rea­sons. Abu-Ulba’s at­tempts to dis­claim If an em­ployee is to be held ac­count­able for their con­duct, an em­ployer must be spe­cific about the ex­pec­ta­tions, notes Howard Le­vitt. re­spon­si­bil­ity for the de­ci­sions of his man­age­ment team rang hol­low with the court. The em­ployer could not suc­cess­fully erase her rea­son­able 11-year record and pre­tend it did not ex­ist. Un­der­stand that you are re­spon­si­ble for your man­agers’ ac­tions and in­ac­tions and should en­sure that you re­ceive ad­e­quate reg­u­lar re­port­ing from them.

the ab­sence of de­tailed notes of coach­ing dur­ing the three­month pe­riod un­der­cut Utopia’s cred­i­bil­ity with the judge.

if an em­ployer chooses to ter­mi­nate an em­ployee, it must be un­am­bigu­ous in its in­ten­tion. Ter­mi­na­tions that will only ma­te­ri­al­ize if the em­ployee fails to meet job re­quire­ments will not be re­garded as work­ing no­tice.

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