You’re go­ing to pay for fir­ing a long-term em­ployee with no neg­a­tive his­tory

The Hamilton Spectator - - BUSINESS -

Be­ware the new boss. They are of­ten the be­gin­ning of your end.

Terry-Lynn learned this the hard way. Af­ter she had worked 11 long years as a skin care tech­ni­cian at a spa, her boss re­signed to take a new job.

When up­per man­age­ment moved in to “re­assess” the state of the na­tion, they de­cided that Ter­ryLynn was un­der­per­form­ing. I would pause here to note that dur­ing those 11 years, she had never re­ceived any writ­ten warn­ings in­di­cat­ing her job was in dan­ger nor had any se­ri­ous dis­cus­sions about her per­for­mance.

Man­age­ment gave Terry-Lynn a let­ter which crit­i­cized her for lack­ing en­thu­si­asm and ex­hibit­ing complacency, not fol­low­ing poli­cies and fail­ing to hand in pa­per­work on time, and not gen­er­at­ing enough rev­enue.

They told her that she must have two suc­cess­ful months out of the next three. If she did not reach that goal, she would be ter­mi­nated at the end of the third month.

Terry-Lynn was floored and cried through­out the meet­ing, leav­ing early be­cause she was so up­set. Nonethe­less she co-op­er­ated with the process and at­tended an hour­long coach­ing ses­sion with the boss once a month. Her pa­per­work im­proved dras­ti­cally. Her rev­enues in­creased.

But that wasn’t good enough. Even though she was do­ing ev­ery­thing they asked, she was per­ceived in the coach­ing ses­sions as still be­ing too com­pla­cent and laid back. Ul­ti­mately she was ter­mi­nated for her “bad at­ti­tude” at the end of the third month.

Terry-Lynn was not in a union and the em­ployer had the right to ter­mi­nate her em­ploy­ment. If they had sim­ply given her a rea­son­able sev­er­ance pack­age at this time, there would be no story to tell. In­stead, the em­ployer de­cided that Terry-Lynn was en­ti­tled to noth­ing and her lack of at­ti­tu­di­nal im­prove­ment con­sti­tuted just cause for her ter­mi­na­tion with­out a pack­age.

Terry-Lynn’s story re­minds me of the prac­tices of many big banks. I am con­stantly see­ing peo­ple who have been ter­mi­nated for not reaching goals or per­for­mance lev­els. It does not mat­ter if the em­ployee has been there for 15 years, or what strengths they may have.

If they are not sell­ing enough or their er­ror rate is slightly too high, the banks are pre­tend­ing there’s just cause for their ter­mi­na­tion. Many em­ploy­ees prob­a­bly just walk away. With those who ob­tain le­gal coun­sel, how­ever, the banks inevitably back off and set­tle.

As the judge in Terry-Lynn’s case noted, mere dis­sat­is­fac­tion with an em­ployee’s job per­for­mance does not jus­tify dis­missal. An em­ployee can­not be sum­mar­ily dis­missed with­out no­tice just be­cause they do not live up to ex­pec­ta­tions. It must be proved that the em­ployee is guilty of se­ri­ous or gross in­com­pe­tence so ex­treme that it con­sti­tutes a re­pu­di­a­tion of the em­ploy­ment con­tract.

Ba­si­cally, the em­ployer does not have to prove the em­ployee was en­gag­ing in wil­ful mis­con­duct, but they do have to show the con­duct was so ex­treme and per­sis­tent that the em­ployee was not even try­ing and didn’t care.

If you’re go­ing to em­ploy some­body for more than a decade and then sud­denly claim their per­for­mance is so bad that they can be fired with noth­ing, you’ve got a big hill to climb.

Terry-Lynn was awarded pay in lieu of no­tice along with $15,000 in ag­gra­vated dam­ages.

The em­ployer had an obli­ga­tion at law to act in good faith in the man­ner of the dis­missal.

This em­ployer told Terry-Lynn she had to im­prove two out of the three months and, nu­mer­i­cally, she did. There was no ev­i­dence that man­agers coached her about her “at­ti­tude” even though this was al­leged to be the cause of her ter­mi­na­tion.

All of this, in the con­text of sud­denly hav­ing raised the per­for­mance thresh­old af­ter 11 years of loyal ser­vice.

Rou­tinely, I see clients who have been ter­mi­nated af­ter long ser­vice. As soon as it be­comes ev­i­dent there was no “re­struc­tur­ing” or any gen­eral cut­backs, I will of­ten ask if they re­cently got a new boss. They stare at me as if I’m psy­chic.

The phe­nom­e­non is all too com­mon. In the ab­sence of a dra­matic per­sonal event, em­ploy­ees do not tend to de­cline in their per­for­mance sud­denly and out of nowhere. Too of­ten, it is the new boss who per­ceives them as be­ing an un­der­per­former.

For­tu­nately, most em­ploy­ers are not silly enough to al­lege just cause.

Ed Can­ning prac­tises labour and em­ploy­ment law with Ross & McBride LLP, in Hamil­ton, rep­re­sent­ing both em­ploy­ers and em­ploy­ees. You can email him at ecan­ning@rossm­cbride.com

ED CAN­NING

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