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Progressive discipline leads to termination for cause for poor performance

termination for cause

I sometimes hear lawyers tell the clients that upholding just cause for poor performance is almost impossible.

Not so, if the employer does it right.

In a recent Canada Labour Code adjudication entitled Bott v Shaw Cablesystems ( 2019 CarswellNat 3038) Adjudicator Gunn had a situation where a Project Manager was terminated for consistent poor performance over an extended period of time.

This is how Mr Gunn summarized his findings:

111      The conclusion I have reached might have been very different had Shaw not communicated their expectations of Mr. Bott, or not allowed him an opportunity to improve, or fired him in a peremptory manner, without using the progressive discipline steps. Instead, Shaw management used progressive discipline including a verbal warning, a written warning and then an unpaid suspension before dismissing Mr. Bott. At each stage in the process there was culpable conduct on Mr. Bott’s part. Mr. Bott’s supervisor, Mr. Jammu, met with him on several occasions to discuss incidents with him and to go over what was expected of him, such as not doing side projects. Mr. Bott ignored him and kept on working on side projects. Mr. Bott was told to keep stakeholders in the picture and be transparent about dates and changes to projects, but he continued not to do so.

112      In short, there is overwhelming evidence that there was just cause to terminate the employment of Ryan Bott. The Respondent has met the onus of establishing this. Mr. Bott’s complaint is therefore dismissed.

As this was a situation covered by the Unjust Dismissal section of the CLC, the employer could not simply have terminated the employee at an earlier time without alleging cause and paid reasonable notice. In a non-CLC case, it is often cheaper and more efficient to terminate an incompetent employee and not allege cause than go through the lengthy process of progressive discipline in the hope of saving on the termination costs. The increased of severance is usually offset by the cost and risk of intentionally keeping on an incompetent employee.

As is often the case with CLC adjudications, the employee represented himself. Shaw was represented by Howard Levitt.

Barry B. Fisher LL.B.

Barry B. Fisher, LL.B., is a mediator and arbitrator of both employment and labour relations matters. He offers three forms of ADR based on clients’ needs: Mediation, Arbitration and Med/Arb. Barry is from the evaluative school of mediation and brings his over 30 years' experience as an employment lawyer and legal author to the dispute. In addition to his knowledge of the legal issues involved in these disputes, he also has a deep understanding of the psychological factors that motivate both employees and employers. By combining these two skills, Barry is able to achieve a settlement rate of over 80% of the disputes that he mediates.

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