When performance issues lead to dismissal

When performance issues lead to dismissal

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Sometimes employers may feel they need to fire an employee for performance issues and are uncertain about how to comply with the Nova Scotia Labour Standards Code (Code).

Employees of less than three months can, with few exceptions, be dismissed without notice. And special rules apply to employees of ten or more years. This discussion is focused on the dismissal of an employee who has worked for their employer for three months or more, but less than ten years.

Let’s consider Megan, who has decided to dismiss an employee, Mark, who is disrespectful to colleagues.

Megan has a few options under the Code:

1. Provide written notice and have Mark work the notice period. Megan knows she can’t reduce Mark’s hours or otherwise change his terms/conditions of employment during this period.

2. Give Mark pay in lieu of notice and end Mark’s employment immediately. This this may be a good option if Megan is concerned Mark would be rude to customers if he worked the notice period.

3. Provide some combination of working notice and pay in lieu. If Mark was entitled to two weeks’ notice, Megan could provide one week’s working notice and one week’s pay in lieu.

If Mark was guilty of uncondoned wilful misconduct or disobedience or neglect of duty, Megan wouldn’t need to give Mark notice, or pay in lieu, under the Code. To determine if performance issues reach the threshold of wilful misconduct or disobedience or neglect of duty, Labour Standards considers:

• the severity of the performance issue – behaviour such as theft or workplace violence might be grounds for immediate termination, meaning notice or pay in lieu is not required; and/or

• whether the employer provided sufficient progressive discipline to justify termination without notice.

While the Code does not mention progressive discipline, decisions by the NS Labour Board provide guidance and some general factors to consider, such as whether the employer has:

• made performance expectations clear to the employee;

• warned the employee to change behaviour;

• given the employee a reasonable chance to change behaviour;

• warned the employee that not improving behaviour could lead to dismissal.

What might progressive discipline in Megan’s situation involve?

Megan meets with Mark to discuss concerns about his behaviour. She provides information on supports available in case personal issues are affecting his work. She makes a record of their discussion.

After another incident of disrespectful behaviour, Megan meets with Mark again and provides a disciplinary letter, outlining the difference between what she expects and how Mark has been acting. Megan warns Mark that his job is in jeopardy if his behaviour does not improve.

A month later, following another incident, Megan provides Mark with a letter advising that he is suspended one day without pay for disrespectful behaviour. Megan warns Mark that if it happens again, his employment will be terminated immediately.

It is important to follow guiding principles. If Mark filed a Labour Standards complaint alleging his employer fired him in violation of the Code, Labour Standards would investigate the matter by collecting and considering evidence on both sides of the issue. Labour Standards would also consider Labour Board decisions that provide guidance on the issue.

This information provides some insight into how the Code applies to situations where an employer fires an employee for performance issues.

Employees who feel they were wrongfully dismissed might choose to pursue an action through the courts — which is outside of Labour Standard’s scope. In such situations, an employer may wish to speak to a lawyer.


Questions?

Learn more at:

novascotia.ca/lae/employmentrights/employernowork.asp


Contact us directly at: LabourStandards@novascotia.ca or 1-888-315-0110

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