now and tomorrow excellence in everything we do...3 now and tomorrow excellence in everything we do...

NOW AND TOMORROW EXCELLENCE IN EVERYTHING WE DO 1 NOW AND TOMORROW EXCELLENCE IN EVERYTHING WE DO


Unjust Dismissal &

Progressive Discipline

Canada Labour Code Part III

Presenters: Daniel Di Vecchia and Alisha Gulamhussein Contact Information: 1-800-641-4049

NOW AND TOMORROW EXCELLENCE IN EVERYTHING WE DO 3

Unjust Dismissal

Employees who believe they have been

unjustly dismissed may lodge a written

complaint of unjust dismissal with the

department, subject to admissibility.


Unjust dismissal admissibility

criteria (10) • Complaint must be in writing.

• Complaint must be made within 90 days of dismissal.

• There must exist an employer-employee relationship.

• Federal jurisdiction.

• Not a manager.


Admissibility Criteria (10) (cont’d)

• Employee was dismissed (also constructive dismissal).

• Employee is not a member of a group of employees subject to a collective agreement.

• Employee has completed 12 consecutive months of continuous employment.

• Employee was not laid off due to lack of work or any other discontinuance of a function.

• Employee does not have other legislative means of redress.


Admissibility Criteria (10) (cont’d)

If, after investigation, doubt exists as to whether

the complainant meets the admissibility criteria,

the benefit of the doubt is usually given to the

complainant.


Unjust Dismissal Process

• Once complaint is received, an inspector will verify the admissibility.

• The employer is required to provide written reasons for termination.

• The inspector assists the parties to settle the complaint.

• Inspector’s role is mediator, not enforcer.


Alternative Dispute Resolution

• Parties meet together to attempt to resolve the complaint.

• Officer acts as a mediator only.

• Advantageous to parties in that they can resolve the dispute between themselves quickly and beneficially.

• Details kept confidential.


Unjust Dismissal Process

If the Officer is not able to assist the parties to

settle within a reasonable time, the complainant

may request that the complaint be referred to an

adjudicator.


Unjust Dismissal Process:

Adjudicator’s Powers

• Rule on preliminary objections, such as

jurisdiction or lay-off.

• Accept testimony and evidence.

• Rule “Just Cause”.

• Rule “Unjust Dismissal”.


Adjudicator’s Powers: If Dismissal is ruled “Unjust”, the adjudicator may:

• Reinstate the employee;

• Award lost wages incurred as a result of the dismissal [Bardal

v. Globe & Mail Ltd., [1960] O.W.N. 253 (H.C.)]

• Award costs, including legal fees;

• Award anything else to counteract the consequences of

dismissal.


Principles and Practices of

Workplace Discipline


Three common reasons for dismissal: • Incompetence: (unsatisfactory performance): a person

does not have the abilities or skills to perform the assigned

duties.

• Negligence: employee has the required skills but seems to

ignore some of their duties or are careless in performing

them.

• Misconduct: Breaking the rules which make the work

place safe and efficient (including dishonest and illegal

activity, impropriety and sexual harassment, drunkenness,

insolence and insubordination).


What is “Just Cause”? • Extreme Incompetence

• Extreme Negligence

• Suggests reckless or wanton disregard of duties

• Endangering the safety of others

• Results in employer or other incurring significant expense

• Extreme Misconduct

• Theft

• Vandalism

• Alcohol/drug abuse on the job

• Illegal activity


Condonation

A fundamental principle that an employer who

knowingly accepts a certain standard of

performance or of misconduct is said to condone

such action, and is thereby prohibited from relying

on such behaviour as grounds for dismissal.


Corrective Action

• Act early, before poor habits/attitudes form.

• Be fair.

• Goal is to improve employee performance.

• Reinforce policy.

• Communicate.

If no cause exists for “summary dismissal” the employer

is obligated to follow a multi-step process to enable to

employee to perform in accordance with expectations.


Incompentence • Set clear, reasonable standards.

• Communicate standards to employee.

• Provide reasonable supervision, training and instruction.

• Provide time and opportunity to reach those standards.

• Provide reasonable warning that failure to meet standards could result in dismissal.


Employer must show:

• The level of job performance required and that the level was communicated to the employee

• That suitable instruction was given to enable the employee to meet the standard

• That the employee was unable to meet the standard

• That there had been warning to the employee of possible dismissal

Incompetence - Establishing “Just Cause”


Incompetence - Establishing

“Just Cause” (cont’d) Employer must act and show that he acted:

• objectively;

• responsibly;

• without discrimination;

• without whim or arbitrariness;

• solely for the good of the enterprise.


• Act within a reasonable amount of time;

• Set reasonable standard of performance;

• Communication expectations;

• Provide practical guidance;

• Allow adequate time to achieve goal;

• Warn employee of discipline/dismissal;

• Keep records.

Review – Incompetence


Misconduct: Two fundamental principles

• In-depth establishment of the misconduct.

• Progressive discipline.


• Duty of fairness (opportunity to be heard).

• Full investigation to allow everybody’s version of the facts.

• Never underestimate details.

Establishing - Misconduct


A progressive disciplinary action is a

measure allowing the employee to correct

an inappropriate behaviour on the job.

Measure aims at correcting the behaviour,

as opposed to punishing the employee.

Misconduct:

Progressive discipline


The level of strictness of the measure may differ, taking into consideration various criteria including, but not limited to:

• the frequency of the misconduct;

• the severity of the misconduct;

• the repetition of an offence;

• the unacceptable nature of the fault;

Misconduct:

Progressive discipline (cont’d)


• Mitigating factors;

• Aggravating factors.

Misconduct:

Progressive discipline (cont’d)


• Verbal Warning (Informal);

• Written Warning, to be put in personnel file;

• Suspension (this step may last over a long period of time with length of suspension ranging from one day to six months or more);

• Dismissal.

Misconduct:

Establishing “Just Cause”

4 Milestones leading to a dismissal:


• Reasonable policy, applied equally;

• Investigation;

• Records;

• Ensure employee is aware of ramifications;

• Progressive discipline to correct behaviour.

Review: Misconduct


A company policy will explain generally

under what circumstances an employee

will be disciplined and/or dismissed. This

should be fair to employees and applied

evenly and consistently.

Dismissal & Policy


• To be valid, a company policy should be written, known, and applied consistently to all employees. The company policy should meet the criteria of reasonableness and non-discrimination.

• Every situation should be subject to an in-depth review with the employee before the warning is put in his/her personnel file.

Tips


• Every situation should be thoroughly recorded in writing, in order to carry weight before an adjudicator.

• Don’t wait until the decision to terminate to begin the corrective process!

• May wish to seek legal advice.

Tips (cont’d)


QUESTIONS???

now and tomorrow excellence in everything we do...3 now and tomorrow excellence in everything we do...

Documents