Nice discussion of how the company might work with the employee through progressive discipline, and of how just cause dismissal could be implemented at the end of this process. Constructive dismissal is not recommended due to the risks associated with it. Barnetson indicates (in the study guide) that employers can lawfully terminate employment in three ways: just cause, non-culpable dismissal, and mutual consent, therefore, it would have been better to discuss non-culpable dismissal or mutual consent as your second option. See additional comments within (in red font). NOTE: comments will not be visible from your e-mail file viewer; you will need to download and open the file using a word processing program – e.g. MS word. Your assignment will contain written feedback, – if you can’t see this written feedback, please let me know. You may need to adjust your word processing program to view the comments. Please let me know if you have any questions. Best wishes, Evelyn
It has been brought to my attention that one of our employees has been demonstrating mediocre performance and has a reoccurring attendance problem due to her child-care situation. A request to HR has been made to “ divest “ the organization of this “ problem employee.”
The first recommendation of legitimate termination is Involuntary Termination. (These are terminations resulting from employment problems such unsatisfactory performance, excessive absenteeism or tardiness, or poor attitude.( In our case, mediocre performance and reoccurring attendance is the issue. Involuntary Termination – be more specific – in-between cases are dealt with through progressive discipline- is a part of a “ progressive step “ process which means that the employeer will be warned of their work performance and /or conduct( and given the opportunity to improve before more severe measures are taken.( However, immediate termination (i.e. immediate just cause dismissal – summary dismissal) may be enacted for severe cases such as theft, sexual harassment or other zero tolerance offencesses.( Often, employers are required to give an employee a due process, which involves giving the employee a chance to prove why they should be allowed to keep their job (or they may be required to give a terminated employee an option to appeal their termination.( In some cases, an employee’s off-the-job behavior could result in losing their hjob. Employers are frequently concerned if an employee’s off-the-job actions may affect the reputation or the organization’s business. A Supervisor and/or workplace must keep extensive documentation of employees including:
• records of disciplinary action(
• attendance records(
• correspondence from supervisors, co-workers and customers(
These records may be used to determine whether or not to terminate an employee considered for such an action.( At a certain point, tThese documentations must be removed from the employee’s file after a specific period of time.
There are advantages and disadvantages of choosing Involuntary Termination.
• Disadvantages may include but are not limited to:
• can be costly to the company by:
• recruiting, selection and training replacements( • lost productivity(
• lawsuits if employee feels they were dismissed unfairly( (e.g. for wrongful dismissal)
• workplace violence
• cost of turnover is 0.5 times the annual salary for an hourly employee( • ( Chapter 3 page 86 )
• (if work notice is given,- should note that when a company terminates an employee for just cause, it isn’t necessary to provide notice) the employee may not work the full termination notice by not showing up for their shift, therefore, putting extra work on other employees • employee can bad-mouth company(
• organization’s unemployment costs increase with each work laid-off or terminated( • may hinder the now job-seeker’s chances of finding new employment( • individuals that sympathize with the terminated employee will turnbe drawn against the person responsible for the employee’s termination(
• Advantages may include but are not limited to:
• (if giving the employee pay in lieu of notice rather than working notice, – again, it’s important to note that the employer is not required to do either) this prevents the employee from bad-mouthing the supervisor or company to others while on the job thus creating an atmosphere of low morale • it gives a clean break for the employee and gives them time to move on and find a new job( • (by offering a decent dismissal offer, the company can avoid the scrutiny of the court which will help contain costs – ok, but if you’re going to provide an offer (e.g. severance pay), then why not opt for non-culpable dismissal, rather than go through the process of termination for just cause? • employees receives compensation in lieu of notice same idea here • fair dismissal can enhance the company’s image- use of progressive discipline, resulting in just cause termination can be fair.
The second recommendation (of legitimate termination Constructive dismissal is not recommended due to the risks associated with it. Barnetson indicates (in his discussion of termination under the heading “Discipline and Termination” in the study guide) that employers can lawfully terminate employment in three ways: just cause, non-culpable dismissal, and mutual consent.) is Constructive Dismissal. According to an oft-cited Supreme Court of Canada case it’s explained as:
• “ When an employer decides unilaterally to make substantial changes to the essential terms of an employee’s contract of employment and the employee doesn’t agree to the changes and leaves their job.( The employee has not resigned, but has been dismissed. By unilaterally seeking to make substantial changes to the essential terms of the employment contract, the employer is ceasing to meet it’s obligations and is therefore terminating the contract.( The employee can then treat the contract as resilient for breach and can leave. “ The employee is still entitled to compensation in lieu of notice.- right, this means that the employer, instead of using constructive dismissal, should opt for non-culpable dismissal, or just-cause dismissal.
The types of unilateral changes to the employment contract may include: ( Study Guide page 60 )
• forced transfer
• forced resignation
• forced retirement
• unilateral reduction in salary or wages
• suspension or lay-off
• major change in duties and responsibilities
• other elements that may cause the employee to feel they have no choice but to resign ( Chapter 3 page 87 )
The risk to the employee is very high risk, since they may be resigning from an employer who in fact had no intentions of firing them in the first place, but rather was simply making some changes to the business at which the employee wasn’t happy about. There are some advantages and disadvantages of choosing Constructive Dismissal.
• Disadvantages may include but not limited to:
• higher risk of employee filing and winning a lawsuit for wrongful dismissal • costly to the company if there is a lawsuit – exactly, this is why it’s not recommended • time-consuming(
• if changing the terms of the contract, it needs to be changed with every employee that holds the same job specifications and requirements to avoid being accused of discrimination,( the mistake of singling out an employee • remaining impacts on remaining employees and general work environment is greater than businesses are willing to tolerate ( Chapter 3 page 89 )
• Advantages may include but not limited to:
• the employer may have been able to induce the employee to resign, possibly saving company money( • (a severance pay is a fair and just resolution to reduce the employee cost burden on the company • in giving severance on pay, it can enhance the company’s image as a fair employer, it’s a way of telling it’s employees that the company cares for their people – ok, these would be advantages associated with non-culpable dismissal) • allowing flexibility for employee to decide to make the desired changes without being in breach of the contract – I’m not following- constructive dismissal is when the company makes the changes, not the employee.
My recommendation would be Involuntary Termination. However, before we can proceed with any type of dismissal, we need to ensure that we have all of the documentation( needed and that personnelal files are current and complete. Documentation is our key to protecting ourselves from wrongful-termination law suits.( We need to proceed slowly, with caution and with a hefty paper trail to back up reasons for termination. (The following are documentations are as follows:
• Employee performance appraisals ( at least one a year; every six months, especially for employees for the first 3 years )( • Job analysis of all jobs – what is required to carry out a job, provide essential knowledge for staffing, training, performance appraisals( ( Chapter 4 page 107 ) • Job Description of every job listing tasks, duties and responsibilities that a job entails.( • History of how infractions have been handled in the past( – Progressive Discipline • Supervisor’s employee log documenting good and bad incidents • Customer evaluation and feedback
• List of rules signed by each employee
• List of progressive disciplinary actions signed by each employee( • (Employment-at-will doctrine signed by each employee ( if required ) – in Canada, employers are required to provide reasonable notice – unless just cause termination occurs)
Upon investigating the employee’s personnelal file, I found the following documents that gives the employer grounds for dismissal.
• Written agreement that essentially states that the employee understands the hiring terms such as: • hire date, rate of pay, probationary period of 3 months, following company’sies policies and procedures such as:
• work performance
• health and safety
• (an Employment-at-will nature of employment meaning either the employer or the employee can terminate employment at anytime. – see previous comment)
• Orientation where the employee received their first training during the first few days of employment. During the orientation, which the employer and employee signed on October 15, 2011, the employee received a “ Policies and Procedures “ handbook that included and explanation of the following:
• workplace performance
• punching in for their scheduled shifts
• Training was also enforced in regards to the specific tasks that the job entailed. Over the 3 month probation period, the Supervisor of the employee and the employee signed off as each job training tasks were completed. Therefore, showing that the employee received the proper training to accomplish their job.(
• Performance appraisal which is the measurement of specified areas of an employee’s performance. Appraisals will include negative information ( areas needing improvement ) ( Chapter 8 page 254 ) A 6 month appraisal was completed with the employee and she was requested to complete a self-appraisal prior to the feedback session.( Upon the investigation of the appraisal, Iit was observed that the employee had a poor rating with attendance and work performance.( Both the supervisor and employee discussed the expectations about performance standards and that the ability and motivation were lacking with the employee, therefore, corrective action was needed.( The employee expressed that personal problems were reducing a lack of her motivation, and that this was due to her unreliable child-care situation whichand was causing her stress and anxiety.
A recommendation of counseling or help with stress management were made,( – good ideas – the EAP could also have provided child-care referrals. If this was a common issue within the organization, they might wish to offer an on-site child-care program. These actions would show that the organization is aware of how women’s role in social reproduction often places them at a disadvantage in the workplace. This could help improve the organization’s image, as well as help it to attract employees in the future. but the employee declined. Prior to the appraisal, a verbal and 1st written progressive discipline were documented. (The employee at the time of this appraisal was given 90 days to improve their reoccurring absenteeism and performance issue.
Upon investigation of the performance appraisal, the employee had already reached the point where the performance expectations were not acceptable to the expectations of the employer.
• 360 degree Feedback which are performance measurements by our employees supervisor, peers, direct reports and customers.( ( Chapter 7 page 233 ) Some of the feedback that was recorded were the following:
• attendance records show that the employee is continuously absent from work or tardy
• this shows on the employee’s reports of punches they are supposed to do at the start and end of their scheduled shift • the documentation of call-ins the employee has made in which the supervisor that took the call has documented
• other employees complaining that the workload is increasing due to the continuous absences of the employee. As well as, employees complaining about work being passed to them because the employee in question is “ being lazy “( • customer complaints that the employee showed lack of interest when helping the customer and just “ tossed “ the customer to other employees ( • documentation from other supervisors noticing the employee standing around, fooling around, ignoring customers and not completing tasks
• Progressive Discipline which identifies and communicates the inappropriate behaviors in which this employee has demonstrated which are mediocre performance and reoccurring attendance problems. The following has been documented:
• Verbal Warning On March 01, 2012, the supervisor, employee and witness discussed the employee’s performance and attendance. The employee explained that she was having problems with her child-care situation and was explaining how she is trying to resolve the issue. The supervisor has given the employee 90 days to try and improve the attendance and performance and deal with the situation she has.(
• Official written warning On June 01, 2012, the employee was given written warning stating that the employee’s attendance and performance have not improved since March 01, 2012 when the verbal warning was given. The supervisor has asked if there’s anything they can do to help the employee make improvements such as changing their hours to accommodate their child-care situation.(- good idea! The employee agreed and promised to to deal with her child-care situation promptly and that their change in hours would work. The supervisor implemented the hours on the following work schedule to be completed and told the employee that they have the remaining 3 weeks of the posted schedule to take care of their situation and that by the time the schedule with the altered hours is posted, the employee will have to prove that this of hours will change their performance and absenteeism.
• 2nd written warning and threat of temporary suspension On June 29, 2012 the employee still had not shown any change in their attendance. The supervisor explained that this performance is unacceptable. The employee has already had almost 4 months to correctconduct one self of the situation. The supervisor is giving the employee 1 more week to improve on their attendance. If the employee hasn’t shown any improvement , the employee has been explained to that she will be temporary suspended.
• Temporary Suspension plus written notice that this is the last chance to improve. On July 06, 2012, the employee was absent from their shift, so on July 07, 2012 when the employee showed up for their scheduled shift, the supervisor spoke with the employee stating that they are being sent home on a temporary suspension. The next shift that they are to report to work would be on July 12, 2012. On July 12, 2012, the employee was absent. Despite verbal and written warnings about the employee’s attendance and performance, the employee has not obtained the performance objectives the supervisor and employee set on March 01, 2012 and reviewed again on June 01 and 29, 2012. Therefore, this is grounds for termination.
All documentations in the employee’s file hasve been signed by the Supervisor, the employee and a witness. The employee was given copies of each.
I have come to the conclusion that the facts and documentation that are in the employee’s file have conclusive evidence in the right of dismissal. As part of the employee’s separation from our company and per company policy,- it might be company policy, but: (the employee will be provided with 1 week termination pay according to the Employment Standards Code of the province of Alberta. –because you have just cause for dismissal, this is not required)
Some steps to follow when terminating an employee would be:
• ensure that the manager treats the employee with dignity and respect and they should empathize with the employee.( If the employee starts to argue, don’t argue back, allow the employee to vent.( As well as, nobody should know about the termination except those that are involved in the decision process • hold the termination in a neutral area such as a conference room • be honest, the termination shouldn’t be a surprise to the employee • keep the meeting short
• explain how HR is going to (explain their severance pay, termination pay,- see previous comments) or unused vacation time and make sure it is documented for the employee
I would appreciate any feedback within the next day from all Senior Level Management in regards to the recommendation of dismissal I have provided. At that point, we will proceed with the dismissal of the employee. I will require the Supervisor of the employee and the employee to join me in the dismissal. Ultimately, the Supervisor is required to execute the dismissal as the HR’s role in the meeting is to provide support for both the manager and employee being terminated, making sure that the conversation doesn’t blow up as well as to serve as a witness.