Discipline And Performance
The conclusion of an employee’s probationary period is often the first discussion an employer has with their employee regarding their job performance. This is a critical time to assess the suitability of the employee for the job and consider whether retention is an option. However, caution must be exercised as that assessment may not be as straightforward as an employer may believe. First, the idea that the employee is on probation and must prove themselves upon being hired is something that must be expressly agreed to by the employee. It is not automatic that an employee is on probation at the start of their employment and can simply be let go at the end of that period.
While legislation indicates that notice is not required for employees that have been employed for three months or less, the common law approach towards the employee is slightly different to this “probationary” period. Employees must at least be given a fair chance at proving themselves during the probationary period. Employers must establish that the employee was given a reasonable opportunity to demonstrate their suitability for the job, that the employer determined the employee was not suitable for the job and that the decision was based on an honest, fair and reasonable assessment as to suitability. This assessment includes not only “…job skills but performance, character, judgment, compatibility, reliability and future with the employer.”
As such, before terminating an employee who is on probation or whose probationary period is ending shortly, consideration must be given as to whether the employee was given a fair chance to succeed. If they have not, there is a chance the employee is entitled to reasonable notice calculated using the probationary period of time. Further, clauses which purport to limit the amount of reasonable notice to be paid in a probationary situation must be very explicit and clear in their intent.
Once the employee has passed the probationary period, assuming there was such an explicit arrangement, and is hired as a permanent employee, an employer should ensure it has processes and procedure for measuring and recording ongoing employee performance. Such protocols may be used to establish just cause later on or a due diligence defence for certain causes of action.
First, before instituting performance management for an incident or behaviour, the employer should ensure that the conduct was not due to a protected ground under the Alberta Human Rights Act. For example, perhaps the misconduct was really due to an employee’s addiction issues or a disability. In these cases, the employer may owe duties of accommodation to the employee or support in some other fashion.
Second, if it is determined a protected ground is not the cause for the misconduct and the employee is deserving of sanction, many employers engage a system of progressive discipline and performance management to document any escalating behaviours and events. A progressive discipline approach also allows employees to be given feedback along the way and the opportunity to correct any offending behaviours. In some cases, the courts may find that an employer was more or less obligated to employ some form of progressive discipline before resorting to termination for cause. In Hussey v. Bell Canada, the employee habitually did not start her work on time and she was eventually terminated. The court found that the employer had displayed a cavalier attitude to the punctuality issue (it only issued one warning letter) and did not take adequate steps to remedy the situation before terminating the employee. The Court found that the “…the concept of progressive discipline requires a great deal more than the delivery of one letter of warning.”
In almost all performance management plans, the employer should make it clear at each step what exactly the issue is that is the subject of complaint, what the requirements of the employee are in their job, what supports might be offered to meet expectations and finally, what the consequences will be for continued failure to meet the expectations. The final warning letter will typically cover the history of the misconduct and outline the most recent issue in some detail. Again, in the case of a protected ground, more consideration is required as to what might be appropriate.
Employers are well advised to consider the performance of their employees in the context of progressive discipline and performance management. In addition to providing valuable feedback to employees, it might also be necessary to establish a basis for a just cause dismissal in many cases.
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