Lewis Waring, Paralegal, Student at law, Editor, First Reference Inc.
In Abdon v Brandt Industries Canada Ltd (“Abdon”), an employer rightfully dismissed an employee for cause as a result of a tendency to fail to show up for work without authorization. After the employer engaged in a series of disciplinary steps, the employee’s dismissal for cause became the only reasonable option to respond to the employee’s egregious failure to fulfill their duties in the workplace.
The employer in Abdon, carried on business as a manufacturer and seller of agricultural equipment as well as participating in a diverse array of other industries. The employee worked for the employer as a welder in one of its facilities in Regina, Saskatchewan from March 2012 until he was dismissed for cause on February 6, 2020. In his role as a welder, the employee assisted in the manufacturing of agricultural augers. In the facility the employee worked in, the employer manufactured 20 augers per day, or one each hour, to meet sales quotas; as a result, the manufacturing process was very streamlined. Consequently, any unauthorized absence of an employee had a significant effect on the employer’s business.
From January 15, 2020 to February 5, 2020, the employee failed to show up for ten separate shifts. The employee alleged that his failure to attend derived from a back injury and supported these claims with two doctor’s notes. However, the employee failed to fill out the short-term disability forms that the employer provided to him in order to process his injury. Furthermore, during the employee’s absence, he travelled to the Philippines to religiously affirm and celebrate his earlier common law wedding vows. As a result of the employee’s dishonesty and history of unauthorized absences, the employee was found to have feigned his injury in order to travel to the Philippines without authorization.
Aside from this string of absences in 2020, the employee had an earlier trend of absences in 2015, which the employer responded to with verbal warnings that eventually culminated in a written warning. That written warning confirmed the employee’s chronic absences, stated the reasons that attendance was particularly important, reaffirmed the company’s procedures for seeking absence from work, and noted that continued chronic absences could result in “further discipline up to and including […] termination”.
The employer’s policy on discipline addressed the issue of attendance. Namely, the employer’s policy stated that employees involved in unauthorized or unreported absences for a period of three or more days were subject to discipline or dismissal. Also, the policy stated that disobedience and/or insubordination were cause for immediate dismissal.
Additionally, the employer had distributed a memorandum titled “Acknowledgment of Leave Policy” dealing specifically with obtaining consent to take leave prior to making plans for doing so. This memorandum specifically addressed the employee’s behaviour. It stated,
The following memo is to confirm that you understand that any form of approved leave with the company must be approved by your manager, as well as the related consequences of committing to any plans prior to having your manager’s approval. Approved leave is defined as having your manager’s approval prior to taking any form of leave from the organization, including but not limited to leave for vacation, banked time, bereavement, unpaid leave of absence, etc.
It is the manager’s responsibility to schedule accordingly so that their respective department continues to operate at full capacity. We try to accommodate as best as possible, however from time to time we are required to reject a request for time off based on the company’s scheduling requirements or other related reasons.
If a request for Leave is not approved by the manager, the employee is required to be at work as scheduled. If the employee does not attend their shift as scheduled it may be deemed as unapproved absence and may result in disciplinary action up to and including termination of employment. Any costs or inconveniences associated to the employee making arrangements prior to having approval for the leave will be solely the employee’s responsibility. An example would include booking airline travel for a specific period of time without having the approved leave from your manager prior. Any costs associated to cancelling or rebooking the trip would be the responsibility of the employee.
The employer’s successful implementation of progressive discipline
The employer succeeded in dismissing its truant employee for cause because it demonstrated clearly its correct application of the techniques of progressive discipline. Before dismissing the employee for cause, it first warned him verbally and then warned him in writing. In the written warning, the employer explained why attendance was important and the potential consequences of unauthorized leave. The employer also addressed its policy in a workplace-wide memorandum. Additionally, the employer’s manual also emphasized the importance of avoiding unauthorized leave and noted that three or more instances were grounds for dismissal for cause. As a result of these steps, the employer was able to demonstrate that it gave the employee every chance to understand the importance of avoiding unauthorized absences and the consequences of failing to do so.
According to the principle of progressive discipline, an employer must take a number of disciplinary steps before considering implementing the ultimate punishment in the workplace, dismissal for cause. These disciplinary steps must increase gradually in seriousness; by doing so, the employer sends the employee a consistent message and allows them a number of chances to correct their mistakes or misconduct. Only after an employee exhibits a repetitive failure to respond to an employer’s attempts to trigger a change in behaviour is the opportunity to dismiss an employee for cause available.
It should be noted that an employee may be dismissed at any time for no reason as long as such an act of dismissal is not discriminatory in any way. Such dismissals are dismissals without cause and require an employer to give the employee notice of their dismissal or provide them instead with equivalent compensation. However, if an employer wishes to dismiss an employee without notice and without providing them with any severance amounts, it must have cause for doing so. In order to obtain cause for dismissing an employee, an employer often must engage in many steps of progressive discipline. By doing so, the employer gives an employee a number of changes to address the poor performance issue. Only by going through these steps can the employer learn whether its relationship with the employee is truly unsalvageable. If an employee displays an unwillingness to respond to an employer’s valid requests for a change in behaviour, the ability to dismiss them for cause may be available.
In Abdon, the employer’s implementation of progressive discipline, as well as its clearly described policy on unauthorized absences, ensured that the employee knew well the repercussions of failing to report to work without the employer’s consent to do so. Because of the employer’s ability to show that it had given the employee every opportunity to understand the danger and irresponsibility of his failures to show up for work, the employee’s egregious failure to live up to their responsibilities was evident. Moreover, the employee illustrated a willingness to deceive the employer by submitting misleading medical documentation that showed bad faith and deceitful intentions. As a result, the employer had no issue demonstrating the employee’s insubordination and deserving of the employment’s ultimate punishment, dismissal for cause.
Using progressive discipline to dismiss for cause
Employers can take from Abdon an affirmation that they are sometimes well within their rights to dismiss an employee for cause as a result of insubordinate behaviour. While employers have a hefty burden to meet when it comes to depriving an employee of their right to notice, meeting that burden requires nothing more than an employer’s demonstration of a willingness to give an employee a number of chances and tools to address and correct mistakes or misconduct. As long as an employer starts with light disciplinary measures such as a verbal warning and gradually ramps up the seriousness of its measures in a way that responds proportionately to the seriousness of an employee’s misconduct or mistakes, it will be well within its rights to dismiss an insubordinate employee for cause if they fail to respond to the employer’s request for change and compliance with workplace policy.
While progressive discipline is often an employer’s greatest asset when it comes to responding to employee poor performance, mistakes and misconduct, it should be noted that some conduct is completely unacceptable in the workplace. While a single act of tardiness is rarely sufficient to justify dismissal for cause, other conduct such as sexual harassment or threats or acts of violence are of a different kind altogether and with proper investigation and evidence, often justify immediate dismissal for cause. In all cases, employers should always seek advice from legal counsel when considering dismissal for cause and should consider developing a comprehensive progressive discipline policy that it can follow in all cases. By doing so, management can respond to poor performance, mistakes and misconduct with confidence and avoid potential liability as a result of decisions to impose disciplinary action up to the point of termination.