Six steps to ensuring employee dismissal doesn’t come back to bite
How to build a very strong case before letting someone go
By Howard Levitt
Patience, it is said, is a virtue. This holds particularly true in employment law. There is no shortcut to building a case for dismissal with cause. Employer impatience comes with a hefty price tag.
Utopia Day Spas & Salons operates several B.C. locations. For approximately 11 years, it employed Jennifer Cottrill as an aesthetician at its Langley branch. Considered competent, Cottrill received positive feedback from her department manager, Dora Bonarek, as well as its principal, Mr. Abu-Ulba.
But she was hardly perfect and was the subject of a number of client complaints. Her record over the years also included warnings for not uniformly complying with company policies on calling back clients and confirming her awareness of service protocols.
When Bonarek left Utopia, Abu-Ulba reviewed the department’s performance, including Cottrill’s personnel file. He was taken aback. Given her years of experience, training and warnings, Abu-Ulba concluded that Cottrill had been underperforming over many years and should have been doing a much better job in her sales and her attitude to her duties. He decided she would be given one final chance and a “termination notice”: over a three-month period, she had to show two successful months or be fired.
Shocked by what she perceived as the about-face in management’s attitude, Cottrill vigorously applied herself to meeting the various sales and performance criteria. But she came up short in management’s assessment in her sales and demeanour and was summarily terminated for cause. Cottrill sued for wrongful dismissal.
Utopia argued that, until Bonarek had left their employ, the owner was unaware of Cottrill’s performance, and that she had had ample warning of her deficiencies and that her attitude was unacceptable.
Madame Justice Wendy Harris of the British Columbia Supreme Court utterly rejected those defences. Senior management could not plead ignorance of performance issues if Cottrill had received no real warning from Bonarek that her job was in jeopardy. Management was bound by what their junior manager had done, no matter how little they now claimed to know (or actually knew).
Significantly, the three-month notice period was determined by the court not to be a genuine initiative to helping Cottrill turn around her performance. Indeed, by all accounts, she made considerable strides to meet management’s new demands. She was promised that, if she improved in two of the three months, she would retain her position. After doing just that, she was still terminated.
The disproportionate and unwarranted allegations of the company prompted the court to award not only wrongful dismissal damages but aggravated damages as well.
The court’s message to employers is unequivocal: if an employer wishes to terminate for cause, there is no substitute for assuring that the following rudimentary steps are taken:
- * Set out standards of performance: if an employee is to be held accountable for their conduct, be specific about the expectations. Utopia was criticized by the court for faulting Cottrill for a poor attitude but not defining what they meant.
- * Afford a fair opportunity to improve: that means giving the employee a genuine chance with enough time and support to meet the standards expected of her.
- * Avoid a fait accompli: the court relied on statements by a member of management that the die was cast to cut Cottrill’s position for financial reasons.
- * Accept responsibility for past management decisions: Abu-Ulba’s attempts to disclaim responsibility for the decisions of his management team rang hollow with the court. The employer could not successfully erase her reasonable 11-year record and pretend it did not exist. Understand that you are responsible for your managers’ actions and inactions and should ensure that you receive adequate regular reporting from them.
- * Record the transactions with an employee: the absence of detailed notes of coaching during the three-month period undercut Utopia’s credibility with the judge.
- * Don’t count the warning period as notice: if an employer chooses to terminate an employee, it must be unambiguous in its intention. Terminations that will only materialize if the employee fails to meet job requirements will not be regarded as working notice.