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Document! Document! Document!

An employer does not need just cause to terminate a non-union employee but if they don’t have it, they have to provide pay in lieu of notice. In addition, if they are one of the 5% or less companies that are governed by the Canada Labour Code, they may also be subject to further sanctions over and above severance
 
Employers often grumble that just cause is impossible for them to prove. It can be very frustrating but employers who do their homework can and often do win that battle.
 
Bill worked for a company that built communication towers for 14 months as a foreman. In the last four months of his employment everything went downhill. First, he received a written warning, for being late for work repeatedly.    
 
A few months later he received a two-day suspension and written warning for driving the company vehicle after having worked the maximum number of allowable hours. Safety regulations limit driving after working more than 14 hours on duty. Bill worked 22.5 hours on duty and then drove the company vehicle home. He never even told the office that he was keeping his crew working that long.
 
Every time the company had a disciplinary meeting with Bill, they not only documented it in writing but also had the office manager attend and make notes. She was an invaluable witness at trial. She confirmed that in the meeting regarding driving after excess hours, Bill’s attitude was cavalier and he gave smart-ass answers. Bill signed the disciplinary memorandum acknowledging that this was a serious health and safety concern. As the foreman, he was in charge of making sure the health and safety policies were followed.
 
Bill overslept at a motel he was staying at to do a job while an expensive rented crane was waiting for him.  It eventually left and had to be rescheduled and the company lost a lot of money.  While Bill claimed that his alarm clock didn’t work, he admitted that he had not asked for a wake-up call from the front desk.
 
A month later, Bill and his crew were photographed on a worksite without hard harts or safety goggles.  In addition, they were not wearing harnesses which were required to minimize the risk of falling.  Bill signed the written warning which advised him that, “any further neglect of duty will be harshly dealt with not excluding dismissal.”
 
Within two weeks Bill was called into the office for falsifying his time sheets and those of his employees.  Although Bill didn’t know it, the company had put GPSs in the company vehicles (other than in some unionized environments, the company does not have to tell you they are doing this). Bill had recorded, on two different days, almost two hours of extra work that had never been performed for him and his crew. 
 
Bill got another written warning but quite frankly I don’t know why they didn’t just fire him at this point.  Even if Bill had nerve done anything wrong before this incident, on its own it would have constituted just cause for termination without notice.  Bill intentionally lied to his employer on the time sheets.  He was the foreman and one the company was trusting most to accurately report hours work.  
 
Part of Bill’s job was filling out daily driving log sheets that were unrelated to payroll but required by law to make sure that employee didn’t drive in excess of the legally permitted number of hours. Bill knew he was supposed to do this on a daily basis.  A few weeks later, the company discovered that he had not been doing them for some time.  It terminated him.
 
Failure to fill out the log sheets alone would never have constituted just cause for Bill’s termination.  It was, however, what is called a “culminating incident”. A judge can take into account an employee’s overall record in assessing whether or not there was just cause for termination. Even if the incident on its own would never have constituted just cause, as the straw that breaks the camel’s back, it can. 
 
Employers, take a lesson from Bill’s employer. Document everything. Have at least two management witnesses to every disciplinary meeting.
 
Don’t entirely, however, mimic Bill’s employer’s behaviour.
 
Go with your gut. Give appropriate warnings and discipline but if you don’t see any lights on across the table or any appreciation of the gravity of the situation, end the relationship. It’s unlikely that it will suddenly change.
 
As published in The Hamilton Spectator, February 10, 2014
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com