The New Brunswick Court of Queens Bench considered this in Parent v Spielo Manufacturing Incorporated, 2013 CanLII 83647 (NB QB). The employee was terminated ostensibly for just cause. She sued, arguing that the employer did not have just cause, but that she was terminated because she was experiencing health issues and because she had responsibilities caring for her special needs child which required, she argued, the employer to accommodate her.
The employer argued, according to the court, that the incompetence related to her “inability to carry out duties and substandard work, which persisted after numerous warnings”. Performance standards were set by the company and a review process was specified. These were company wide. Essentially, this was a performance management process.
A performance evaluation was done of the plaintiff on December 15, 2008. She met expectations (3.88 out of 5).
On or about July 8, 2009 the plaintiff gave birth to a son who had some health issues. She returned to work from her maternity leave in July 2010 and explained to her supervisor the challenges her child was experiencing and how they could handle the plaintiff’s regular absences from work to bring her child to appointments (as frequently as five times per week). According to the Court:
… [the company] agreed that she would have more flexible hours than anyone else employed by [the company] to accommodate her and allow her to go with her child at his doctor’s appointments. However, she would have to meet the objective standards of performance set for all employees. [The Plaintiff] had made it clear, with reason, that her son’s health was to come first and [the company] rightly understood.
In December 2010 she was given a further review and scored 2.94 out of 5.
In February 2011 at a meeting with her supervisor, she was told that she did not meet the “three point mark”, a three month performance review plan was discussed, and she was told that a further meeting would be held in three months time.
In May 2011, at the planned meeting, the plaintiff was informed that she did not meet expectations and she was given a written notice of her 30 day performance plan. There were three (3) points of improvement identified.
On June 21, 2011 she was provided with a letter as follows:
As a result of the above issued, I feel that I must now emphasize in writing how important it is for you to understand and address these issues. This is not something I do lightly or without a considerable amount of thought.
Immediate improvement is required and you will be expected to maintain the improvement in the above-mentioned areas, or you will be subject to further corrective action, including possible termination of employment. During the next 60 days we will meet once a month to discuss your progress related to these issues. You will maintain a daily activity log that will be emailed to me at the end of each work week (Friday’s at 5:00 pm).
A similar notice was delivered on August 24, 2011.
At year’s end, her performance was assessed at 2.78 out of 5. Prior to that meeting, however, the plaintiff provided the employer with a letter from her doctor advising “that she would get surgery on February 10 and would be off work for six consecutive weeks.” It would seem that the performance review was not delivered prior to her leave. Upon her return on March 19, 2012, the plaintiff was given a copy of her performance review, which she had failed, and advised that her employment with the company was terminated effective immediately.
Many employees and employers are rightly cautious about terminating an employee who is absent on a medical leave or returning from a leave. This introduces a dynamic into the termination decision that is simply not present in the run of the mill discharge case.
The Parent case, and others, establish that while caution is called for, it remains possible to terminate a “high-risk” employee (even for just cause).
To state the obvious - the employer bears the onus of proving/establishing just cause on a balance of probabilities. Incompetence is not the same as dissatisfaction with the performance of an employee.
The Court distinguished between just cause based on incompetence (e.g. she is incapable of performing the work) and negligence or lack of diligence (e.g. consistently failing to meet a reasonable performance standard). In that regard, see, for example, Radio CJVR Ltd. v. Schutte, 2009 SKCA 92 (CanLII).
The Court in Parent discussed what must be established by the employer:
To dismiss an employee for incompetence, the employer must show, on balance, the following (Lee v. Parking Corp. of Vancouver 1998 CanLII 3906 (BC SC), 1998 CanLII 3906 (BC SC), (1998), 39 C.C.E.L. (2d) 135, 56 B.C.L.R. (3d) 170, at para. 23 (S.C.) [Lee], adopted from Bogden v. Purolator Courier Ltd. 1996 CanLII 10572 (AB QB), 1996 CanLII 10572 (AB QB), (1996), 19 C.C.E.L. (2d) 77, 182 A.R. 216 (Alta. Q.B.) [Bogden]):
1) The level of job performance that it required and that the level required was communicated to the employee.
2) That it gave suitable instruction to the employee to enable him to meet the standard.
3) That the employee was incapable of meeting the standard.
4) That there had been a warning to the employee that failure to meet the standard would result in his dismissal (Van Houwe v. Intercontinental Packers Ltd. reflex, reflex, (1987), 59 Sask. R. 178 (Q.B.)).
Another Court in Graf v. Saskatoon Soccer Centre Inc. 2004 SKQB 282 put it this way:
It is also well established that where an employer relies on a series of inadequacies or inappropriate conduct short of dishonesty as grounds for summarily dismissing the employee, the employer must have previously informed the employee of his or her inappropriate conduct or inadequate performance and have warned the employee that she or he must correct the noted problems within a reasonable specified time or face dismissal. The essential elements of the requisite warning are set out in Wrongful Dismissal Practice Manual….They essentially provide for the following:
(a) the employer must provide reasonable objective standards of performance for the employee in a clear and understandable manner;
(b) the employee must have failed to meet the employer’s reasonable standard of performance;
(c) the employer must give the employee a clear and unequivocal warning that she or he has failed to meet the requisite standard, including particulars of the specific deficiency relied on by the employer;
(d) the warning must clearly indicate that the employee will be dismissed if he or she fails to meet the requisite standard within a reasonable time.
Following a review of the evidence in Parent the judge concluded as follows:
Given her failure to improve after having been given ample occasions to do so, her employer was entitled to make the decision that it was unlikely that [the plaintiff] could eventually return to her past performance capacity, during which period she met the performance standard. I find this decision to be reasonable on the part of [the Company].
It seems clear that [the plaintiff] was not listening to the constant message that she had to improve her performance to maintain employment at [the company], otherwise she would be dismissed.
However, the Court looked at the timing. From August 24, 2011 until her termination in March 2012, there had been no issues with plaintiff’s performance that were communicated to her. Further, the December 2011 unfavourable performance review was not reviewed with the plaintiff before she left for surgery and the dismissal was only delivered upon her return to work in March 2012. The Court observed:
I believe that this delay was intentional on [the company's] behalf for obvious reasons. This decision for her dismissal was taken upon the last review being completed and this surgery had no bearing on her dismissal.
The evidence does not, in any way, support [the plaintiff's] personal issue, such as her son’s illness, as having been a consideration or a concern to [the company] in her dismissal.
The plaintiff could have, daily, brought any concerns to her supervisor but never did.
Importantly, the Court commented that the performance standards were not arbitrary or unattainable.
The Court found that the plaintiff’s employment was terminated for just cause and that she was therefore not entitled to damages on account of reasonable notice at common law.
The significance of this case for employers is obvious. Just cause is difficult to establish - I don’t think anyone (even a management labour and employment lawyer) would deny that. However, proving just cause for termination, while difficult, is not impossible even when faced with a high risk situation (as was present in Parent).
Diligence, patience, perseverance, reasonableness, documentation and honest communication and follow up will certainly maximize the chances of success when challenged. While these best practices are always important, they are particularly so when the equities might favour the terminated employee.