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Dismissed!

by Jim Park
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Getting fired can be the most emotionally charged experience you could ever have, and that's what generates most of the problems. Anger, frustration, fear, and possibly even thoughts of revenge percolate to the surface pretty quickly. Some linger long after the event; others drive it. There's a lot at stake in a firing, and that often leads to mistakes on both the employer's part and the employee's.

The employer driven to dismiss a negligent employee might see it as an action to prevent further loss or damage. He may be trying to rid the organization of an unproductive or incompetent worker, or maybe there's just a personality clash between the employee and a supervisor.

The employee may be able to defend his actions, believing they were reasonable and justified under the circumstances. Perhaps he was involved in a situation that was beyond his ability. Or he was disobeying company policy and procedure, being insubordinate, or just plain hard to get along with.

Are any of the above justifiable reasons for a dismissal? Absolutely, but not in every circumstance. That's why the Client Education & Training Branch of Human Resources and Skills Development Canada (HRSDC) has devised a set of guidelines to add some structure to this very emotional decision.

Generally speaking, there are three grounds for disciplinary action: incompetence, negligence, and misconduct. Incompetence means that a person does not have the abilities or skills required to perform the assigned duties. Negligent employees may have the requisite skills but they seem to ignore some of their duties or are careless in performing them. Misconduct means that the rules have been broken. Although an employee may break these rules without causing a direct or immediate impact on the company's output, the attitudes of customers and other employees may be negatively affected. Thus, disciplinary action may be justified.

And then there is the really serious stuff. Some offences are grounds for immediate or instant dismissal rather than progressive discipline. These offences include gross misconduct such as theft or falsification of records, willful destruction of an employer's property, or endangering the safety of fellow employees through incompetence or negligence.

Employees have also been dismissed for activities which place them in conflict of interest, such as setting up a business that competes directly with their employer. Instant dismissal can also be justified for actions outside the work place. This may include involvement in criminal activity that reflects badly on the employer or damages, beyond repair, the employer's trust in the employee.

Misconduct that may justify instant dismissal differs from one situation or industry to another. What may be a major offence in one type of business may not
be considered as serious in another. For example, a criminal conviction for theft may not be seen as seriously by an industrial employer as it would by a financial institution.
Drinking on the job or coming to work intoxicated is most serious when the employee's actions could endanger the safety of others.

The seriousness of any offence also depends on the employee's level of responsibility and the loss incurred by the employer as a result of the employee's action. Therefore, in deciding whether the employer was justified in immediately dismissing the complainant, adjudicators under the Canada Labour Code must first determine the seriousness of the misconduct.

"The extreme theory is - you can fire someone for absolutely anything," says David Leroux, technical advisor with HRSDC's Labour Program. "Proving it is another matter."

Leroux's department views dismissal as the last and most serious step an employer can take in the disciplinary process - the objective of which is to correct inappropriate behavior in the work place. When all other avenues have been exhausted and the inappropriate behavior continues, dismissal may be justified, but only in those terms.

Leroux's department has created a pamphlet called "Progressive Discipline" that outlines the steps the employer must take in disciplining an employee, and the same pamphlet describes what the employee can expect from the process. But more than that, the guidelines are intended to remedy the problem: fix instead of fire.

"We put the pamphlet together after years of extremely expensive unjust-dismissal hearings and just-cause investigations," says Leroux. "At the end of the day we, or an adjudicator or a referee, would rule that the firing should not have taken place or had not been proven. Expensive settlements were ordered, or the employee was reinstated, but quite often, that only sets the tone for a not-so-nice future for both parties."

"The days of some boss waking up on the wrong side of the bed and taking it out on the first employee to do something wrong - who might get fired on the spot - are long gone," he says. "If you are going to fire someone, it must be for cause and it must be proven. Drastic action such as dismissal may only be taken after all corrective measures have been exhausted."

Progressive Discipline
The concept of progressive discipline demands that all employees know from the start what's expected of them in terms of qualifications, performance, and conduct. The employer should provide workers with a clearly defined set of rules or guidelines outlining those expectations. This can often be found in the company policies and procedures manual, assuming such a book exists. The manual should also outline what measures will be taken if the rules are broken so that everyone is on the same page.

The Terminology of Termination

Can you interchange the terms 'termination' and 'dismissal'? Both mean that you've lost your job, but they have different implications. The Canada Labour Code (CLC) makes a distinction between dismissals and lay-offs or terminations.

Dismissals are disciplinary actions that can be found to be just or unjust, and they can be challenged under specific sections of the Code. Temporary or permanent layoffs stemming from economic considerations such as lack of business or a reorganization cannot be challenged in the same way. Termination is often used in reference to a firing that occurs during the 90-day probationary period, whereas the term dismissal is used to describe a firing that occurs after one year of continuous service.

Under the Code, an employee can be terminated at any time for any reason without notice or cause during the first three months of employment. Although the Code does not specifically refer to a probationary period, most employers will use this period as the formal probation time for new employees. From three months to 12 months, employees may be terminated, but they must be given either two weeks notice or two weeks pay in lieu of notice - unless the employer can prove just cause. After 12 months of continuous service with an employer under federal jurisdiction (such as an interprovincial trucking operation), if you feel you have been wrongly fired, you can file a claim of unjust dismissal; subject to a number of qualifiers that exist under the Code as outlined in our Pamphlet #8.

In a well managed company, when a problem occurs, the employer acts on it early, before the problem becomes a habit, before the incident gets overlooked. Early disciplinary action could be verbal or written, but it's important that the incident be documented. A note should be put into the employee's file describing the incident, the actions taken, and the next steps - should there be another occurrence. And the employee should be asked to sign the note indicating he or she has been informed of the action.

The action should be fair and applied consistently throughout the organization so that it doesn't appear that one employee is being singled out for special attention. The action should also include direction on how to remedy the problem, which could include re-training or re-orientation to improve performance.

There should be a follow-up review in a specified period of time to see if the action taken has solved the problem. If further action is required, the employer could suspend the employee or take some other sort of action, but it all has to be documented. If the employer fails to document the actions taken and the eventual results of the progressive discipline process, in almost all cases, a review by a Labour Program inspector will find the dismissal was unjust.

A number of factors should be considered before an employer decides to dismiss for disciplinary reasons. There are some cases where the violation of a work place rule or the degree of incompetence or negligence is so great that the employer is justified in dismissing an employee immediately. However, an employee's misbehavior usually has relatively minor consequences and is easily corrected. Employers should use a system of progressive and corrective discipline, which permits employees to learn from their mistakes and improve their performance. Dismissal is normally the last resort in such a system.

Leroux says fair application of the rules of the work place and proper documentation outlining the steps taken is required to prove that dismissal was warranted in the face of ongoing attempts to correct the problem.

"The pamphlet was written to help employers either correct the problem, or failing that, then ensure that actions to record progressive discipline take place so that they can justify their actions when the day of reckoning arrives," Leroux says. "We also use this pamphlet to counsel and educate employees on the topic as well. So it goes both ways quite well."

Constructive Dismissal
How's that for a contradiction in terms? The phrase 'constructive dismissal' describes situations where the boss hasn't directly fired the employee, but has forced him out or encouraged him to quit by changing the terms of employment -- without his consent.

It's sometimes called "disguised dismissal" or "quitting with cause" because it often occurs in situations where the employee is offered the choice of leaving or of submitting to a substantial change in the terms and nature of the work he does. Whether or not there's been a constructive dismissal is based on an objective view of the employer's conduct and not merely on the employee's perception of the situation.

This is murky territory, and it often comes down to words and deeds versus perception, but Leroux says his colleagues get very few driver complaints stemming from constructive dismissal. But that's not to say it doesn't happen.

Drivers, for example, often grumble about being switched onto very undesirable runs when the historic pattern says those routes aren't the norm. Seemingly unwarranted downtime is another common grievance - especially while freight volumes seem to be steady and high.

Unjust Dismissal Case History -- Violation of Company Rules with a Culminating Incident

Special issues: progressive discipline system. Appraisals show improvement after every disciplinary action taken.

Bob, a driver for an interprovincial trucking firm, had been dismissed after four years. In the letter of dismissal, the employer stated that Bob had violated company rules many times and the culminating incident was an act of insubordination.

Bob filed a written complaint with the Labour Program a week later, claiming he had been fired without cause and without any notice or warning.

The assigned inspector met with the manager of the firm who provided well-documented records showing Bob had been disciplined frequently for misconduct, including breaking the firm's rules and regulations, and for insubordination. Most had happened in the first two years of his employment with the firm. Recent appraisals by his direct supervisors had noted improvement in Bob's attitude and work performance.

After reviewing the file, the Labour Program inspector advised the employer that Bob's improved record during the last two years showed that he had responded well to progressive discipline. This would make it difficult to argue that Bob's refusal to obey an order was a culminating incident.

Outcome -- the employer later advised the Labour Program inspector that he would reinstate Bob but only if Bob was willing to go on probation for a year. Bob agreed to the manager's terms and was back at work two weeks later.


Leroux has a couple of theories on why there aren't more complaints of this nature. He says despite the change in routing, the fundamental nature of the driving job hasn't changed. So that really doesn't imply a significant change to the terms of employment. His other thought is that it might just be so easy to find another company offering suitable employment these days that many drivers don't give quitting a second thought.

In order for a complaint of constructive dismissal to be taken seriously, you must have actually quit in protest of the change in terms of employment or formally expressed your intention or concerns with the employer, and filed a claim within 90 days of the change.

Dismissal is always a difficult process: difficult for employers in that it must be done properly and cannot be arbitrary or vindictive, and for employees because it means an upheaval in their lives. But in the end, it has to be carried out properly, even in extreme circumstances.

When Leroux was a Labour Program inspector he received a call from an employer who had had a driver go AWOL (absent without leave) on a trip. The driver had paid an unscheduled visit to a friend who lived off-route but somewhere close to his destination. The friend had a particularly jealous husband that took a dim view of said driver visiting his wife. Having caught the pair in the act, said jealous husband shot the employer's expensive truck full of holes, and then proceeded to burn the thing to the ground, cargo and all. The question from the employer was, "is this grounds for immediate dismissal?"

Clearly, the driver should have been held responsible for his actions, but Leroux says the proper process still had to be carried out.

For further information on progressive discipline, constructive dismissal, or any other facet of getting fired, contact the nearest Labour Program office of Human Resources and Skills Development Canada, or visit the HRSDC website: www.hrdc-drhc.gc.ca

For More Information...

HRDC has published a series of bilingual information pamphlets on this and other relevant sections of the Canada Labour Code, Part III. They're available on-line at:
http://info.load-otea.hrdc-drhc.gc.ca/labour_standards/pamphlets.shtml

Written copies of the publications can be obtained from:
Public Enquiries Centre
Human Resources Development Canada
140 Promenade du Portage, Phase IV, Level 0
Gatineau, Quebec
K1A 0J9
Fax: 819-953-7260

All three parts of the Canada Labour Code are available on-line:

Canada Labour Code Part I - Industrial Relations:
http://info.load-otea.hrdc-drhc.gc.ca/federal_legislation/part1/legislation/clc1a.htm

Canada Labour Code Part II - Occupational health and Safety:
http://info.load-otea.hrdc-drhc.gc.ca/federal_legislation/part2/part2.htm

Canada Labour Code Part III - Labour Standards:
http://info.load-otea.hrdc-drhc.gc.ca/federal_legislation/part3/legislation/clc3a.htm


For further information, please contact the nearest Labour Program office of Human Resources Development Canada or visit the HRDC Web site:
http://info.load-otea.hrdc-drhc.gc.ca/federal_legislation/home.htm

HRDC Labour Program
Regional Offices, District Offices

Alberta, Northwest Territories & Nunavut Region
Calgary District Office - 780-310-0000, then 427-3731
Edmonton District Office - 780-427-3731
All other Alberta locations - 780-310-0000, then 427-3731
NWT/NU - 800-897-5629

British Columbia & Yukon Region
Vancouver District Office - 604-872-4384
Kelowna District Office - 250-762-3018

Manitoba Region
Winnipeg Regional Office - 204-983-3493
Brandon District Office - 204-726-7936
Winnipeg District Office - 204-983-6375
Toll free - 800-838-2033 (within Manitoba and area codes 807 and 819)

New Brunswick Region
Regional Office, Moncton - 506-851-6640

Newfoundland Region
Regional Office, St. John's - 709-772-5022

Nova Scotia Region
Halifax District Offices - 902-426-4995
Sydney District Office - 902-564-7130

Ontario Region
Regional Office - 416-954-2891
Toronto District Office - 416-954-5900
Ottawa, North and East District Office - 613-946-2800
Southwestern District Office - 519-645-4047

Prince Edward Island Region
Charlottetown - 902-566-7171

Québec Region
Montreal District Office - 514-283-2214
Québec District Office - 418-648-7707

Saskatchewan Region
Regina District Offices - 306-780-5408
Saskatoon District Office - 306-975-4303