Written by Daniel Standing LL.B., Editor, First Reference Inc.
It’s an awful lot harder to convince an arbitrator, court or tribunal about the validity of a culminating incident leading to termination if no prior problems were documented. This point was neatly illustrated in a decision of the Alberta Labour Relations Board in 2023 CanLII 1492, where a car mechanic who was fired on shaky grounds was awarded pay in lieu of notice of termination. The case provides employers with a good reminder about the uphill battles they will likely face in arguing the unsuitability of an employee without the evidence to back it up.
The employer said it had five reasons for terminating the mechanic’s employment after a six-month stint: he was consistently late, he refused to keep a record of his hours and tasks, he left jobs incomplete, yelled at the owner in front of customers and did shoddy work.
What the Board said
The Board wasn’t convinced the employer had just cause for termination. In fact, for each of the grounds of appeal, there was simply no evidence: no notations in the file, no dates, and no verbal or written warnings or advice to the employee that he would be subject to discipline if his problematic behaviour continued. The employer admittedly ran a “very lenient shop.”
The Board’s brief analysis was founded on a statement from a 2001 Alberta case in which the judge stated there are two categories of conduct that can lead to a dismissal. The first are incidents that are so egregious as to justify immediate dismissal. In the second category are incidents of misconduct that are inconsistent with the employee’s duties but fall short of being so serious as to warrant immediate dismissal. In those cases, the court said, the employer must warn the employee that their conduct is unacceptable and that their job is in jeopardy. Applying these statements, the Board said that without proof of any warnings, the disciplinary record wouldn’t support a termination.
Responding to the company’s allegation that an incident of hostile language and a slammed door gave it cause for dismissal, the Board said this “isolated display of pique” was provoked by the boss’s threat that if time records were not kept properly, he would withhold the employee’s paycheque. The Board ruled the provocation diminished the blameworthiness of the behaviour below the legal threshold required to terminate for just cause.
For these reasons, the Board upheld the decision, requiring the employer to pay the employee in lieu of notice of termination.
This decision highlights a fundamental principle of employment law and litigation in general. Without facts, it will be difficult, if not impossible, to prove one’s case. It does little good to harbour concerns about an employee’s bad performance if the employer’s concerns are never recorded or pursued in a timely way. In those cases, the work relationship often sours to the point where the employer wishes to terminate, only to find out its hands are tied because it did a poor job managing and documenting performance issues.
A better approach is to stay on top of developments in an employee’s performance and attitude by documenting incidents and escalating the response accordingly. By building a file in this way, an employer sets itself up much better to prove its case and avoids allegations that it condoned or ignored misconduct.