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“That’s Not In My Job Description”
Dealing with Difficult Employees
Ruben Goulart
Megan Burkett
KEYSER MASON BALL, LLP
February 8, 2011
Human Resources Professional Association of Halton
© Keyser Mason Ball, LLP
Overview
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1)
Just Cause
2)
Insubordination
3)
Unmotivated Employees
4)
Innocent Absenteeism
5)
Performance Management
6)
Discipline Checklist
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Just Cause
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
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Definition:

A breach of the employee’s fundamental obligations to
the employer

A repudiation of the employment contract

Single incident of misconduct generally not enough (unless
severe case of theft, assault, or dangerous conduct)

Progressive discipline approach depending on nature of
breach
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Insubordination
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
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Definition:

An employee’s deliberate disobedience of a direct order

Breach of company policies and procedures

The order must be reasonable

An essential term of employment must be breached
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Insubordination
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Bohay v. 567876 Saskatchewan Ltd., 2009 SKPC 128
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
Hair stylist Bohay returns from vacation and learns that a
co-worker purchased the hair salon and is her new boss

No advance notice of impending sale of business provided

All employees will lose health benefits

Receptionist overheard Bohay on the phone making
negative comments about new owner and expressing
unhappiness
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Insubordination
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Bohay v. 567876 Saskatchewan Ltd., 2009 SKPC 128 con’t
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
Bohay was called to a meeting

Bohay swore during the meeting

Discloses that her father and sister are ill

When asked directly by Bohay if she is being warned or
fired, new boss says “No” and “No”

Bohay was terminated before her next shift; she had 22
years of service and was 44 years of age
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Insubordination
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1.
Was there just cause for termination?
2.
What steps could the new owner have taken
prior to terminating employment?
3.
Were there any mitigating factors?
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Insubordination
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Bohay v. 567876 Saskatchewan Ltd., 2009 SKPC 128 con’t
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
Trial outcome: just cause not established

Conduct blameworthy, but not sufficient to establish just
cause without warning

Bohay worked for old boss for 22 years and had an
excellent working relationship; with new boss for 4 days

Experiencing personal problems – father, sister ill

Awarded 9 months
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Insubordination
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Chen v. Sable Fish Canada, [2010] B.C.W.L.D. 5850
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
Chen was promoted to Production Manager from the role of
technician

Chen did not possess the people management or
organizational skills for role and was transferred to role of
Broodstock Manager

Sable Fish was having financial trouble; 5 employees were
let go and share offering sent out to shareholders
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Insubordination
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Chen v. Sable Fish Canada, [2010] B.C.W.L.D. 5850 con’t

Chen sent negative and disrespectful letter to 40 people,
including shareholders, attacking Sable Fish and
management team

Accusations of overspending, favouritism, and disastrous
management

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Chen terminated for cause; had 6 years of service
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Insubordination
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1.
Was there just cause for termination?
2.
Were there any mitigating factors?
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Insubordination
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Chen v. Sable Fish Canada, [2010] B.C.W.L.D. 5850 con’t
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
Just cause termination upheld

Letter an attempt to embarrass the company

No regard to the harm that may be caused to company

Fundamental breach of trust

Actions irreconcilable with continued employment
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Unmotivated Employees
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Examples include:

carelessness

lapse in good judgment

not completing job duties
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Unmotivated Employees
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Leitner v. Wyeth Canada, 2010 ONSC 579 (Canlii)
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
Leitner held the position of General Product Manager; was
41 years of age with 8 years of service

Wyeth conducted an audit of expense accounts

Leitner submitted inaccurate information such as incorrect
names and dates as well as personal receipts for
reimbursement

Approximately $500 was improperly claimed
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Unmotivated Employees
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Leitner v. Wyeth Canada, 2010 ONSC 579 (Canlii) con’t
.

Leitner’s explanation was that he reported his expenses
irregularly

He often had difficulty in remembering the time and place
where the expenditures were incurred or had difficulty in
locating receipts
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Unmotivated Employees
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1.
Was there just cause for termination?
2.
Was his conduct fraudulent or reckless?
3.
Are there any mitigating factors?
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Unmotivated Employees
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Leitner v. Wyeth Canada, 2010 ONSC 579 (Canlii) con’t
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
Leitner’s explanation that he was not trying to gain extra
compensation but trying to be reimbursed for expenses he
incurred

His long and distinguished service was a mitigating factor

Actions careless or a temporary lapse in good judgment

Awarded 10 months of pay in lieu of notice
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Unmotivated Employees
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Brock University v. CUPE Local 1295 L.V.I. 3135-7
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
Grievor was a cleaner employed on the night shift and had
1 year of seniority with the bargaining unit

Previous suspension on record for arriving late to work and
for spending time in cleaners room not performing work

Grievor was caught laying down on a bench watching
television for over 30 minutes when he should have been
working

Grievor was terminated for just cause
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Unmotivated Employees
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1.
Was there just cause for termination?
2.
Are there any mitigating factors?
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Unmotivated Employees
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Brock University v. CUPE Local 1295 L.V.I. 3135-7
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
Just cause termination upheld

Prior discipline and recent incident over a short period of
time

Grievor spends most of his time unsupervised

He could no longer be trusted to perform his work
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Absenteeism
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

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Definition:

Absenteeism: Lateness or missed shifts

Innocent absenteeism: for reasons other than illness,
injury or for good reason
Culpable vs. Non-Culpable Absenteeism

Culpable = conduct that is blameworthy

Non-Culpable = conduct that is innocent
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Absenteeism
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

Employees cannot be disciplined for the following:

An absence due to illness or injury

Non-performance or poor performance due to the illness
or injury

Circumstances out of the employee’s control
What can employees be disciplined for?

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Misconduct
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Absenteeism
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
Includes misconduct that is related to the absenteeism

Employees can be disciplined for the failure to follow an
employer’s reporting absences policy including:

Call-in procedure

Providing required medical documents, or

Leaving work early without proper authorization
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Innocent Absenteeism
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Jones v. Patriot Forge, 2009 CarswellOnt 306
.

Jones was a machine operator who was 44 years of age
and had 5 years of service

Jones had received a few discipline letters for minor
workplace errors or an absence from work over the years

Jones missed one week of work and for some of those
dates, he had not followed the proper call-in procedure

He was suspended for 3 days for not giving proper notice
and following absence procedures
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Innocent Absenteeism
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Jones v. Patriot Forge, 2009 CarswellOnt 306 con’t
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
One month later, Jones missed a shift

A friend called in the absence and Jones attended at court
to be a surety for that friend

Jones dismissed for just cause
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Innocent Absenteeism
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1.
Was there just cause for termination?
2.
What steps could the company have taken
prior to terminating employment?
3.
Were there any mitigating factors?
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Innocent Absenteeism
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Jones v. Patriot Forge, 2009 CarswellOnt 306 con’t
.

Judge accepts that Jones was a less than ideal employee

No evidence to show that Jones’ absenteeism pattern
outside the norm of other employees

Jones corrected many of his errors following discipline

Just cause termination harsh; 3 months notice awarded
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Performance Management
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
Apply a progressive discipline approach

Has the employee received verbal and/or written warnings
first?

Has the employee been warned that the next incident may
result in further discipline including termination?

Are expectations clearly set out?

Is support/training being offered?

Is there regular follow-up and communication?
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Performance Management
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Jazarevic v. Schaeffler Canada, 2010 ONSC 2491
.

Machine operator had 9 years of service and was 43 years
of age

Schaeffler had 4 step discipline process; any 4 infractions
within 12 months will lead to dismissal

Jazarevic only had 2 warnings until the year following when
his wife died and he was left to raise 5 kids

Jazarevic began missing shifts or coming in late on a few
occasions, which resulted in 4 warnings over 12 months
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Performance Management
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Jazarevic v. Schaeffler Canada, 2010 ONSC 2491 con’t
.

Jazarevic was warned the next incident would result in
termination

Incident occurred involving production, including failure to
properly set up machine and production of non-confirming
parts

Jazarevic told company of additional personal issue of his
sick mother

Schaeffler decided to terminate for cause
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Performance Management
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.
1.
Was there just cause for termination?
2.
What steps could the company have taken
prior to terminating employment?
3.
Were there any mitigating factors?
31
Performance Management
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Jazarevic v. Schaeffler Canada, 2010 ONSC 2491 con’t
.

Judge held that company did not have just cause

Discipline Policy should not have mechanical 4 step
process

Need opportunity for proportionality

Many mitigating factors

Awarded 7 months notice
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Discipline Checklist
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1.
Know all the facts accurately. Interview witnesses
and conduct an investigation (as appropriate).
2.
Can the company prove what happened?
3.
Is the rule that has been violated reasonable?
4.
Did the employee know the rule – or should the
employee have known the rule?
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Discipline Checklist
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4.
Is the rule being applied fairly, having regard to
the circumstances (includes issue of
condonation)?
5.
Have the preliminary procedures been followed
(i.e. has the employer followed its own rules and
procedures)?
6.
Review how other employees have been
disciplined for same offence.
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Discipline Checklist
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7.
Except in cases such as theft, assault, and other
dangerous or harmful offences, has the employee
first been warned/counseled?
8.
Is this employee personally guilty, rather than
being guilty by association with another
employee?
9.
Does the discipline fit the misconduct?
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Discipline Checklist
10. What is the employee’s disciplinary record (type,
frequency, and age)?
11. How long has the employee been with the
organization?
12. Does the employee have a reasonable excuse for
the rule infraction or misconduct (i.e. personal
circumstances)?
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A Final Thought
The strategic benefit of a written employment
agreement with a termination provision.
.
37
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Questions?
Ruben Goulart
Megan Burkett
Keyser Mason Ball, LLP
(905) 276-9111
www.kmblaw.com
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