Records of absenteeism and lateness have been kept, but all disciplinary action has been verbal. Can we terminate the employee?
Question: I have just joined an organization that wishes to terminate an employee for absenteeism and persistent lateness. The employee is relatively new and following a successful three-month probation period, another letter was issued extending her contract for another three months. The reason for only extending a further three months was that the company did not want to commit to a permanent contract with the absenteeism problems, but this was not stated in the letter.
Records of absenteeism and lateness have been kept, but all disciplinary action has been verbal. Can we terminate the employee on these grounds? If not, where do we stand?
Answer: Your question raises a number of issues. Clearly, the employer’s past response to the employee’s persistent absence and lateness is less than ideal if it wishes to rely on that conduct to terminate her for cause.
Although verbal warnings do have a place in effective employer-employee relations, their continued use in the face of a persistent and repeated employment “offence” puts the employer at a serious disadvantage.
At a minimum, if the employee chose to contest a dismissal, it would be difficult for the employer to show the employee was clearly advised it would not tolerate her level of absenteeism and lateness.
Even if the evidentiary hurdle could be overcome, the absence of a paper trail means that there is no objective basis upon which to judge the message that was actually being received by the employee. She could have grounds to argue that it was not made clear to her that her job would be in jeopardy if the absenteeism/lateness continued and thus had no real opportunity to change her behavior.
More importantly, the manner in which the employee has been handled to date may have given her reason to believe the employer would continue to tolerate her conduct. The employer’s characterization of her probationary period as “successful” despite its concerns, together with its failure to give reasons for offering a limited-term contract, seriously undercuts whatever message the employee may have taken through the verbal warnings.
Her continued ability to get away with a high level of absenteeism and lateness provides additional support for an argument the employer has condoned the past misconduct and thus cannot rely on it at all as grounds for dismissal. Any attempted dismissal on the basis of condoned misconduct would be considered a dismissal without just cause and would render the employer liable for wrongful dismissal damages.
If the employer wants to terminate the employee for cause (without payment of salary and benefits in lieu of reasonable notice of dismissal) but minimize its exposure to potential liability, acting to dismiss on the basis of the past record would not likely be its best course of action.
While it is possible an abysmal employment record could overcome the deficiencies in the employer’s response, it is more likely the ambiguous response would serve as the basis for an award of some compensation to the dismissed employee.
The safer course would be for the employer to attempt to rectify its past omissions before proceeding to dismissal. The employee should be provided with a written warning which clearly details the unacceptable employment record, sets out a reasonable time for improvement and specifically points to dismissal as the probable consequence of a failure to improve in the future. If the employee fails to heed the clear warning of dismissal by continuing to exhibit poor attendance in the time allotted for improvement, the employer can then act to dismiss her.
There is no indication in your question that the employee’s absences and lateness are anything other than a wilful disregard of her employment obligations. But employers must be alert to the possibility that attendance problems may be caused by an illness or disability, including possible substance abuse.
In such cases a disciplinary approach will not be appropriate. While it is up to an employee to make his or her employer aware of a need for accommodation, if there is any basis for suspecting the employee’s problems may be attributable to disability, an employer will not escape liability by turning a blind eye to those indicators.
Tim Mitchell is an employment lawyer with Laird Armstrong in Calgary. He can be reached at [email protected] or (403) 233-0050.
Records of absenteeism and lateness have been kept, but all disciplinary action has been verbal. Can we terminate the employee on these grounds? If not, where do we stand?
Answer: Your question raises a number of issues. Clearly, the employer’s past response to the employee’s persistent absence and lateness is less than ideal if it wishes to rely on that conduct to terminate her for cause.
Although verbal warnings do have a place in effective employer-employee relations, their continued use in the face of a persistent and repeated employment “offence” puts the employer at a serious disadvantage.
At a minimum, if the employee chose to contest a dismissal, it would be difficult for the employer to show the employee was clearly advised it would not tolerate her level of absenteeism and lateness.
Even if the evidentiary hurdle could be overcome, the absence of a paper trail means that there is no objective basis upon which to judge the message that was actually being received by the employee. She could have grounds to argue that it was not made clear to her that her job would be in jeopardy if the absenteeism/lateness continued and thus had no real opportunity to change her behavior.
More importantly, the manner in which the employee has been handled to date may have given her reason to believe the employer would continue to tolerate her conduct. The employer’s characterization of her probationary period as “successful” despite its concerns, together with its failure to give reasons for offering a limited-term contract, seriously undercuts whatever message the employee may have taken through the verbal warnings.
Her continued ability to get away with a high level of absenteeism and lateness provides additional support for an argument the employer has condoned the past misconduct and thus cannot rely on it at all as grounds for dismissal. Any attempted dismissal on the basis of condoned misconduct would be considered a dismissal without just cause and would render the employer liable for wrongful dismissal damages.
If the employer wants to terminate the employee for cause (without payment of salary and benefits in lieu of reasonable notice of dismissal) but minimize its exposure to potential liability, acting to dismiss on the basis of the past record would not likely be its best course of action.
While it is possible an abysmal employment record could overcome the deficiencies in the employer’s response, it is more likely the ambiguous response would serve as the basis for an award of some compensation to the dismissed employee.
The safer course would be for the employer to attempt to rectify its past omissions before proceeding to dismissal. The employee should be provided with a written warning which clearly details the unacceptable employment record, sets out a reasonable time for improvement and specifically points to dismissal as the probable consequence of a failure to improve in the future. If the employee fails to heed the clear warning of dismissal by continuing to exhibit poor attendance in the time allotted for improvement, the employer can then act to dismiss her.
There is no indication in your question that the employee’s absences and lateness are anything other than a wilful disregard of her employment obligations. But employers must be alert to the possibility that attendance problems may be caused by an illness or disability, including possible substance abuse.
In such cases a disciplinary approach will not be appropriate. While it is up to an employee to make his or her employer aware of a need for accommodation, if there is any basis for suspecting the employee’s problems may be attributable to disability, an employer will not escape liability by turning a blind eye to those indicators.
Tim Mitchell is an employment lawyer with Laird Armstrong in Calgary. He can be reached at [email protected] or (403) 233-0050.
