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Understanding Progressive Discipline and When To Use It

By January 30, 2017November 5th, 2019Employment Law

Here is a question I often get from our dentist clients and one that might sound familiar to you, if you’ve ever had a bad employee:

My dental assistant is not very good at her job.  She has poor interpersonal skills and she’s often late for work without excuse.  She talks down to patients and makes them feel uncomfortable.  I haven’t talked to her about any of this before, but I’ve documented it all and now I’d like to fire her for cause.  Can I do that?

My answer is always a resounding NO!  Here’s why…

Two Categories of Just Cause

Just cause” for firing an employee must be either

  1. Grievous: meaning misconduct so serious that it warrants termination (for example, theft of company property); or
  2. Cumulative: meaning various instances of less serious misconduct that, taken together over time, has the effect of being so serious that it warrants termination (for example, being consistently late and incompetent without excuse).

Our incompetent assistant example above falls in the “cumulative” category, so it may seem like our dentist has got enough dirt on the assistant to fire her for “just cause”.  But, alas, that is not so!

The courts have said that employees in this situation are entitled to “progressive discipline” in the form of a clear warning and an opportunity to mend their ways and remedy their weaknesses.  An employer cannot treat matters of which he/she was previously aware but didn’t bring to the employee’s attention as cumulative cause for dismissal.  Here’s a visual aid on how progressive discipline may work:

Having a Progressive Discipline Policy May Not Help

Progressive discipline must be applied even in the absence of a progressive discipline policy at the office.  But, having a progressive discipline policy and not following it when required is even worse, as evidenced in a 2007 case where  a senior manager was fired for cumulative just cause but only one of a series of minor incidents of misconduct was brought to his attention (Laszczawski v. Aluminart Products Ltd., 2007 CanLII 56493 (ON SC)).  The judge in that case decided that the employee should have had the benefit of having the progressive discipline policy applied and the dismissal was held to be unlawful (meaning without just cause) and awarded the employee pay in lieu of notice.

In some instances, employers are convinced that they have a case of grievous misconduct on their hands and attempt to bypass the progressive discipline process only to get burned in the end.  In a recent Ontario court case, Sinnathamby v. The Chesterfield Shop Limited, 2016 ONSC 6966,  the plaintiff, Ms. Sinnathamby was a long time employee of the Chesterfield Shop who took ill and didn’t report to work and didn’t provide a doctor’s note for the absence, despite being asked to do so by the manager and being warned that failure to do so will result in termination. The manager terminated the employee for cause and the employee subsequently gave proper documentation for her medical leave of absence.  The judge in this case acknowledged the employer’s right to ask for a doctor’s prognosis but found that the employer was not adversely affected by Ms. Sinnathamby’s absence or her failure to provide the documentation by the date requested.  The manager’s mere frustration at not receiving proper documentation in clear defiance of the office policy was NOT enough to constitute just cause in this case.  The judge once again reiterated the need for proportionality in an employer’s actions against employees and the need for progressive discipline in cases where misconduct is not considered grievous.

Take Home Lesson

Despite the countless court decisions about what behaviour constitutes just cause and what behaviour warrants progressive discipline, the fact of the matter is that termination for just cause is a mine field.  Tread carefully and always seek legal assistance when deciding to terminate an employee for just cause.

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice, contact DMC today. We are your legal dental team.

DMC