After several verbal warnings about her lack of time management skills, bev was placed on PIP thta outlined detailed bettre performance objectives and provided timelines for fulfilling those objectives. The PIP was framed as a last chance agreement and Bev was aware that her job was in jeopardy when she signed it- without improvement , she would be termoinated. The PIP called for several mangers to work with her to help her improve her performance. It was a busy time of year, however and managers didnot follow up until several months later when noting that there had been no improvement in Bev's performance, Bev was fired for cause on the ground of poor perfromance. Do u think the employer had just cause to dismiss Dev

provid Similarly employer monitor an employer need not p the employer risks losing the benefit of the fixed term if it inadvertently allows an e of resignation, if employment ends who employee to continue work beyond the expiry date. Should this occur, the employ ed. However, ce automatically becomes covered by an indefinite-term contract. (Also note that statutory notice under the Employment Standards Act [ESA], discussed in Chapter 14, is required if the term or task extends beyond 12 months.) To avoid this result, employers should use some form of a reminder system you that they do not inadvertently let a fixed-term employment contract lapse. Moreover as discussed in Chapter 4, even fixed-term contracts should contain a termination provision that allows either party to terminate the contract on a certain amount of senior positions. notice. The notice period is typically two to four weeks, but it can be longer for more Finally, it is good practice to periodically revisit all employment contracts to ensure they reflect the current employment relationship. Courts will refuse to enforce contracts that they find obsolete, because obsolete contracts no longer reflect the employment relationship; the employer then will lose the protections contained in the original contract. This typically means that the termination clause negotiated by the parties at the outset of the employment relationship can be held not to apply. To avoid this result, the contract could contain a clause that allows it to be reopened and updated periodically. Alternatively, amendment of the exist. ing employment contract could be a condition of all promotions and significant changes in duties. Managing Employee Performance and Conduct 1. Performance Appraisals Performance appraisals are a key tool in an employer's ongoing management of the employment relationship. Performance evaluation is not a form of discipline. It gives performance. the employer an opportunity to provide regular feedback to an employee about his MS Performance appraisals serve several purposes. Done well, they motivate en- ployees and foster an atmosphere of openness within an organization. They provide encouragement to strong performers and alert poor performers to problems at an early stage, thus providing an opportunity for improvement. Alternatively, perform. ance appraisals may help an employee realize that his skills and aptitudes do not it well with the current position, and that it is time to look elsewhere for a suitable job428 PART III DURING THE COURSE OF EMPLOYMENT . August 17, 2001-Verbal warning for causing the produc- tion line to go down by failing to "drop the coil." not the similarity-of the accumulated misconduct that . October 2, 2001-Suspended for two and a half days for matters. In this case, while each of the incidents (although not setting the correct pressure and causing the produc- serious) might not be sufficient to amount to just cause by themselves, "when vi then viewed collectively .. the series of acts tion line to shut down. cumulatively do amount to enough bricks to constitute a just . May 8, 2002-Suspended for one day for challenging a cause wall."The court concluded that Daley's performance fel fellow employee to a fight in the parking lot following a below any reasonable standard of conduct that his employer was entitled to expect. disagreement. . July 24, 2002-Suspended for five days and warned that The court made it clear that the thorough way in which his job was in jeopardy for showing up for work with alco- the employer implemented its progressive discipline policy was crucial to its finding. It noted that hol on his breath. September 26, 2002-No disciplinary action but inves- Depco took care to clearly lay out the facts, the tigation undertaken for improperly inserting a part that penalty if any, and notably, as the employee resulted in 56 scrapped parts and the line being shut down proceeded through the various progressive for two hours. discipline steps, specific reference was made . December 6, 2002-Termination for two culminating to the prior warnings given, the dates of the incidents: not dropping the coil (a very rare occurrence but offences, and the prior transgressions. By doing done by Daley twice) and causing lubricant to be spilled this, the employee was clearly reminded of prior onto the floor in a safety-sensitive area. warnings, while at the same time advised as to the consequences of future violations of com- Daley sued for wrongful dismissal. pany policy. The employee was also asked to acknowledge receipt of copies of such notices in writing, while not necessarily being asked Relevant Issue to admit an error. The employee's additional Whether the employer had just cause to terminate Daley on comments were also solicited. ... the basis of his cumulative misconduct. This Court encourages employers to adopt clear and forthright disciplinary procedures and Decision to apply them fairly. The court found that Depco had just cause. It noted that in Daley's wrongful dismissal action was dismissed, and the deciding a case of cumulative just cause, it is the quality-and employer was awarded $11,000 in legal costs. One of the contentious issues in Daley was whether the first four incidents could be taken into consideration by the court because Depco's progressive discipline policy stated that "[alny disciplinary action will be removed from the employee's record after one year." Although the employer argued that the words "incident free' should be read into this line of the policy, the court refused to do so because this would have created a restriction that did not exist in the employer's own clearly wallol an polEd bag of written policy. As a result, the court only considered the last five incidents because only these took place in the 12 months before the termination. However, the court found that these five incidents were sufficient to support a finding of cumulative just cause and praised the non-union employer's general approach to progressive discipline. Progressive discipline is less applicable in the context of statutory termination or severance pay requirements than it is under the common law. Under the ESA, mis- conduct must be "wilful" or intentional before an employer is exempt from notice orMARTIN DURING THE COURSE OF EMPLOYMENT 426 Generally speaking, when applying its progressive discipline policy, an employer considers the type of misconduct, as well as any previous misconduct, the discipline applied, and the length of time over which all of the incidents took place. The level of discipline applied must be proportionate to the employee's misconduct. An employer ifan e may skip steps in the disciplinary process as long as the policy allows it this discre. mediatel tion and the incident is sufficiently serious to warrant this action. Progressive discipline is now common in many non-unionized workplaces as a main ma well. Although there are some incidents, such as acts of violence, for which in. perform mediate dismissal is appropriate, most incidents of misconduct warrant a less severe 11. If proble response. Applying discipline in a series of steps allows an employer to respond to final wr an employee's inappropriate conduct in a measured way and allows an employee the on note opportunity to improve. Moreover, where rules are clear and consistently applied, termina employees are less likely to resent discipline or see it as unfair. An employee who help the compan is eventually dismissed for cause after being subjected to progressive disciplinary measures is less likely to challenge her dismissal in court or elsewhere (e.g., before the foll in the fu human rights or employment standards tribunals). Moreover, where a progressive to be successful. discipline policy is in place and consistently applied, any such challenge is less likely mination FYI Another b Progressive Discipline: A Step-by-Step Guide for Employers employer avo An employer may choose to include some of the following steps in a progressive is aware of my discipline program: An employer 1. Outline acceptable standards of conduct and the consequences of misconduct as a basis for in the policy manual or elsewhere. within a reas 2. Describe the steps that may be taken as part of a disciplinary action; coaching, a ampany poli verbal warning, a written warning, suspension(s) with or without pay, a final the employee's written warning that the employee's job is in jeopardy, and dismissal. (However, The aforen employers should be cautious when applying suspensions without pay to non- of adopting unionized employees. Unless an employer has a well-known policy regarding consistently. suspensions, suspensions without pay may constitute constructive dismissal, be- cause under the common law an employer has no inherent right to suspend an employee for any reason.) 3. Retain the right to disregard these steps and proceed immediately to suspension CASE or dismissal where serious misconduct is involved. 4. Clarify that progressive discipline is a disciplinary procedure, not merely per- formance feedback. Employer 5. Document every step of the process, including verbal warnings, and indicate the Daley v Depo time, date, and reason the step was taken. Be sure to indicate the type of disci- pline (e.g., verbal warning or final written warning) at the top of the document (Dusti, 2013, p. 56). Daley was 58 6. Explain to the employee the problem, the acceptable standard, and the action 13 years as an necessary to meet this standard at every step. in December 7. Ensure that plans devised to correct the problem are realistic, including time- just cause," In lines for making the necessary improvements. documented employer, ha policy set ouCHAPTER 11 Navigating the Employment Relationship 425 Even if a poorly performing employee remains on the job and the problems continue, the employer has laid the legal foundation for dismissing the employee with cause. As discussed in Chapter 13, it is particularly difficult for an employer to dismiss an employee on job performance-related grounds. However, an employer that has created a paper trail by consistently documenting performance problems and efforts at providing assistance is in a stronger legal position than an employer that has failed to do so. That being said, performance appraisals are useful only if they reflect the actual performance of an employee. Many supervisors have a natural reluctance to raise performance problems with employees for fear of a hostile response. They may therefore note only the more positive aspects of the employee's performance and remain silent on problematic areas. A series of inappropriately positive reviews makes it very difficult for an employer to successfully allege just cause for dismissing an employee for poor job performance. Therefore, supervisors should be trained to conduct fair and effective performance appraisals, In small organizations, performance appraisals tend to be less formal than in larger ones. However, in either case, appraisals should be conducted regularly and objectively, based on the following principles: 1. Be honest and balanced. Identify both strengths and weaknesses. 2. Clearly communicate job standards to each employee. 3. Use a standard form to ensure that employees are evaluated consistently. 4. Allow the employee an opportunity to respond to an evaluation, both on the form and orally. 5. Document the evaluation. 6. Provide employees with a copy of the evaluation and have them acknowl edge in writing that they have received it. The acknowledgment should indicate that an employee's signature does not mean that she agrees with the contents of the appraisal, simply that she has read it. anice and 7. Set goals for the future and revisit these goals at the next performance review. 8. Generally speaking, conduct performance appraisals separately from salary reviews. An across-the-board salary increase, for example, may send a mixed message to someone who has received a poor performance review. s not afraid ers coping 2. Progressive Discipline dback to ups The practice of progressive discipline first arose in unionized workplaces. It is based progressive discipline on the idea that discipline for less serious infractions should be imposed in a series discipline that is imposed of increasing steps. For example, where an employee is absent from work without a series of increasing step . Dont will leave, an employer may be required to give a verbal warning for a first occurrence, in an orpolice a written warning for a second occurrence, and suspensions of increasing lengths or performers for subsequent occurrences, with a final written warning that the employee's job is ovement At in jeopardy. Each of these steps must be documented. If the misconduct continues his salt despite these disciplinary actions, an employer may eventually be entitled to dismiss lookeder the employee for cause.CHAPTER 11 Navigating the Employment Relationship s. Ask employees whether they have any comments to add to the disciplinary 427 form. Employees should sign the form to prove that they have received a copy of it if an employee refuses to sign, this should be noted on the document. o sera date for a follow-up meeting but state that management will respond im- mediately if further problems arise before the meeting. 10. Train managers to deal with performance issues and monitor employee performance. It, if problems persist after taking other disciplinary action, give the employee a final written warning before termination. In the final warning, put the employee on notice that unless there Is amimprovem srovement, he will be subject to immediate termination for cause and note the measures that management has taken to help the employee meet the job standards. A final written warning usually ac- companies a suspension letter (if there is a suspension), which concludes with the following warning: "Should you repeat or continue any of the above conduct In the future, you will be subject to further discipline, up to and including ter- mination of your employment." Another benefit of consistently applying a progressive discipline policy is that the employer avoids condoning misconduct. Condonation occurs when an employer is aware of misconduct and takes no disciplinary action within a reasonable time. condonation An employer that condones misconduct arguably cannot later use the misconduct implied acceptance by one party of the conduct as a basis for discipline or dismissal. For example, an employer that fails to react of another party; once within a reasonable time after becoming aware of an employees contravention of a misconduct is condoned, company policy against borrowing money from suppliers arguably has condoned an employer cannot dismiss an employee for the employees behaviour. The aforementioned case of Daley v Depco International Inc shows the value that misconduct without any new misconduct of adopting clear disciplinary procedures and then following those procedures consistently. CASE IN POINT Employer Argues "Cumulative Just Cause" Daley v Depco International Inc, 2004 CanLil 11310 (Ont Sup Ct J) Facts (1) counselling, (2) verbal warning, (3) written warning, ( Daley was 58 years old and had worked for Depco for pension, and (5) termination. It disciplined Daley as foll 13 years as an extrusion operator on a production line when, in December 2002, he was fired on the basis of "cumulative . August 21, 2000-Counselling for using the wrong just cause." In the previous 28 months there had been nine als in production, causing the production line to documented incidents of misconduct. Depco, a non-union down for hours. employer, had applied the five-step progressive discipline . February 1, 2001-Written warning for failing to policy set out in its employee handbook. The steps were report absence. PDP