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“That’s Not In My Job Description” Dealing with Difficult Employees
Ruben GoulartMegan Burkett
KEYSER MASON BALL, LLP
February 8, 2011Human Resources Professional Association of Halton
© Keyser Mason Ball, LLP
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2.
1) Just Cause
2) Insubordination
3) Unmotivated Employees
4) Innocent Absenteeism
5) Performance Management
6) Discipline Checklist
Overview
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3.
Definition:
A breach of the employee’s fundamental obligations to the employer
A repudiation of the employment contract
Single incident of misconduct generally not enough (unless severe case of theft, assault, or dangerous conduct)
Progressive discipline approach depending on nature of breach
Just Cause
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4.
Definition:
An employee’s deliberate disobedience of a direct order
Breach of company policies and procedures
The order must be reasonable
An essential term of employment must be breached
Insubordination
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5.
Bohay v. 567876 Saskatchewan Ltd., 2009 SKPC 128
Hair stylist Bohay returns from vacation and learns that a co-worker purchased the hair salon and is her new boss
No advance notice of impending sale of business provided
All employees will lose health benefits
Receptionist overheard Bohay on the phone making negative comments about new owner and expressing unhappiness
Insubordination
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6.
Bohay v. 567876 Saskatchewan Ltd., 2009 SKPC 128 con’t
Bohay was called to a meeting
Bohay swore during the meeting
Discloses that her father and sister are ill
When asked directly by Bohay if she is being warned or fired, new boss says “No” and “No”
Bohay was terminated before her next shift; she had 22 years of service and was 44 years of age
Insubordination
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7.
1. Was there just cause for termination?
2. What steps could the new owner have taken prior to terminating employment?
3. Were there any mitigating factors?
Insubordination
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8.
Bohay v. 567876 Saskatchewan Ltd., 2009 SKPC 128 con’t
Trial outcome: just cause not established
Conduct blameworthy, but not sufficient to establish just cause without warning
Bohay worked for old boss for 22 years and had an excellent working relationship; with new boss for 4 days
Experiencing personal problems – father, sister ill
Awarded 9 months
Insubordination
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9.
Chen v. Sable Fish Canada, [2010] B.C.W.L.D. 5850
Chen was promoted to Production Manager from the role of technician
Chen did not possess the people management or organizational skills for role and was transferred to role of Broodstock Manager
Sable Fish was having financial trouble; 5 employees were let go and share offering sent out to shareholders
Insubordination
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10.
Chen v. Sable Fish Canada, [2010] B.C.W.L.D. 5850 con’t
Chen sent negative and disrespectful letter to 40 people, including shareholders, attacking Sable Fish and management team
Accusations of overspending, favouritism, and disastrous management
Chen terminated for cause; had 6 years of service
Insubordination
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11.
1. Was there just cause for termination?
2. Were there any mitigating factors?
Insubordination
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12.
Chen v. Sable Fish Canada, [2010] B.C.W.L.D. 5850 con’t
Just cause termination upheld
Letter an attempt to embarrass the company
No regard to the harm that may be caused to company
Fundamental breach of trust
Actions irreconcilable with continued employment
Insubordination
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13.
Examples include:
carelessness
lapse in good judgment
not completing job duties
Unmotivated Employees
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14.
Leitner v. Wyeth Canada, 2010 ONSC 579 (Canlii)
Leitner held the position of General Product Manager; was 41 years of age with 8 years of service
Wyeth conducted an audit of expense accounts
Leitner submitted inaccurate information such as incorrect names and dates as well as personal receipts for reimbursement
Approximately $500 was improperly claimed
Unmotivated Employees
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15.
Leitner v. Wyeth Canada, 2010 ONSC 579 (Canlii) con’t
Leitner’s explanation was that he reported his expenses irregularly
He often had difficulty in remembering the time and place where the expenditures were incurred or had difficulty in locating receipts
Unmotivated Employees
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16.
1. Was there just cause for termination?
2. Was his conduct fraudulent or reckless?
3. Are there any mitigating factors?
Unmotivated Employees
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17.
Leitner v. Wyeth Canada, 2010 ONSC 579 (Canlii) con’t
Leitner’s explanation that he was not trying to gain extra compensation but trying to be reimbursed for expenses he incurred
His long and distinguished service was a mitigating factor
Actions careless or a temporary lapse in good judgment
Awarded 10 months of pay in lieu of notice
Unmotivated Employees
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18.
Brock University v. CUPE Local 1295 L.V.I. 3135-7
Grievor was a cleaner employed on the night shift and had 1 year of seniority with the bargaining unit
Previous suspension on record for arriving late to work and for spending time in cleaners room not performing work
Grievor was caught laying down on a bench watching television for over 30 minutes when he should have been working
Grievor was terminated for just cause
Unmotivated Employees
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19.
1. Was there just cause for termination?
2. Are there any mitigating factors?
Unmotivated Employees
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20.
Brock University v. CUPE Local 1295 L.V.I. 3135-7
Just cause termination upheld
Prior discipline and recent incident over a short period of time
Grievor spends most of his time unsupervised
He could no longer be trusted to perform his work
Unmotivated Employees
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21.
Definition:
Absenteeism: Lateness or missed shifts
Innocent absenteeism: for reasons other than illness, injury or for good reason
Culpable vs. Non-Culpable Absenteeism
Culpable = conduct that is blameworthy
Non-Culpable = conduct that is innocent
Absenteeism
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22.
Employees cannot be disciplined for the following:
An absence due to illness or injury
Non-performance or poor performance due to the illness or injury
Circumstances out of the employee’s control
What can employees be disciplined for?
Misconduct
Absenteeism
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23.
Includes misconduct that is related to the absenteeism
Employees can be disciplined for the failure to follow an employer’s reporting absences policy including:
Call-in procedure
Providing required medical documents, or
Leaving work early without proper authorization
Absenteeism
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24.
Jones v. Patriot Forge, 2009 CarswellOnt 306
Jones was a machine operator who was 44 years of age and had 5 years of service
Jones had received a few discipline letters for minor workplace errors or an absence from work over the years
Jones missed one week of work and for some of those dates, he had not followed the proper call-in procedure
He was suspended for 3 days for not giving proper notice and following absence procedures
Innocent Absenteeism
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25.
Jones v. Patriot Forge, 2009 CarswellOnt 306 con’t
One month later, Jones missed a shift
A friend called in the absence and Jones attended at court to be a surety for that friend
Jones dismissed for just cause
Innocent Absenteeism
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26.
1. Was there just cause for termination?
2. What steps could the company have taken prior to terminating employment?
3. Were there any mitigating factors?
Innocent Absenteeism
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27.
Jones v. Patriot Forge, 2009 CarswellOnt 306 con’t
Judge accepts that Jones was a less than ideal employee
No evidence to show that Jones’ absenteeism pattern outside the norm of other employees
Jones corrected many of his errors following discipline
Just cause termination harsh; 3 months notice awarded
Innocent Absenteeism
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28.
Apply a progressive discipline approach
Has the employee received verbal and/or written warnings first?
Has the employee been warned that the next incident may result in further discipline including termination?
Are expectations clearly set out?
Is support/training being offered?
Is there regular follow-up and communication?
Performance Management
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29.
Jazarevic v. Schaeffler Canada, 2010 ONSC 2491
Machine operator had 9 years of service and was 43 years of age
Schaeffler had 4 step discipline process; any 4 infractions within 12 months will lead to dismissal
Jazarevic only had 2 warnings until the year following when his wife died and he was left to raise 5 kids
Jazarevic began missing shifts or coming in late on a few occasions, which resulted in 4 warnings over 12 months
Performance Management
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30.
Jazarevic v. Schaeffler Canada, 2010 ONSC 2491 con’t
Jazarevic was warned the next incident would result in termination
Incident occurred involving production, including failure to properly set up machine and production of non-confirming parts
Jazarevic told company of additional personal issue of his sick mother
Schaeffler decided to terminate for cause
Performance Management
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31.
1. Was there just cause for termination?
2. What steps could the company have taken prior to terminating employment?
3. Were there any mitigating factors?
Performance Management
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32.
Jazarevic v. Schaeffler Canada, 2010 ONSC 2491 con’t
Judge held that company did not have just cause
Discipline Policy should not have mechanical 4 step process
Need opportunity for proportionality
Many mitigating factors
Awarded 7 months notice
Performance Management
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33.
1. Know all the facts accurately. Interview witnesses and conduct an investigation (as appropriate).
2. Can the company prove what happened?
3. Is the rule that has been violated reasonable?
4. Did the employee know the rule – or should the employee have known the rule?
Discipline Checklist
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34.
4. Is the rule being applied fairly, having regard to the circumstances (includes issue of condonation)?
5. Have the preliminary procedures been followed (i.e. has the employer followed its own rules and procedures)?
6. Review how other employees have been disciplined for same offence.
Discipline Checklist
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35.
7. Except in cases such as theft, assault, and other dangerous or harmful offences, has the employee first been warned/counseled?
8. Is this employee personally guilty, rather than being guilty by association with another employee?
9. Does the discipline fit the misconduct?
Discipline Checklist
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36.
10. What is the employee’s disciplinary record (type, frequency, and age)?
11. How long has the employee been with the organization?
12. Does the employee have a reasonable excuse for the rule infraction or misconduct (i.e. personal circumstances)?
Discipline Checklist
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37.
The strategic benefit of a written employment agreement with a termination provision.
A Final Thought
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38.
Questions?
Ruben Goulart
Megan Burkett
Keyser Mason Ball, LLP
(905) 276-9111www.kmblaw.com
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