Editorial: Why it’s so difficult to fire a misbehaving employee

A recent decision by the B.C. Employment Standards Tribunal appears to accept, and in some respects even reward, workplace disobedience. The case involved an employee at a dental clinic in Lumby, a small town 26 kilometres east of Vernon.

The employee had been warned several times that texting while in meetings, or in front of clients, was inappropriate. Matters came to a head when the employee was seen by co-workers at a staff meeting texting with her cellphone concealed under the table. Other colleagues had previously complained about this habit, which allegedly had been going on for years.

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On these grounds, the employee was fired with cause. Her boss, dentist Dr. Paula Windsor-Lee, argued that her repeated warnings about inappropriate texting established grounds for dismissal.

That justification, however, was ruled insufficient by the tribunal. The fired employee was awarded compensation of $5,164, and Windsor-Lee was fined an additional $2,000 for contravening the Employment Standards Act.

There are two issues here. The first has to do with the level of workplace misbehaviour that warrants dismissal.

According to the provincial government’s interpretation, “An employer can fire an employee with just cause if they commit a serious offence. For example, if an employee steals, commits fraud, acts dishonestly, assaults or harasses others, or breaks company rules.”

No one would disagree that theft, fraud or physical violence are grounds for termination. But if that’s what it takes to get fired, surely the bar is being set too high.

Most of us would think that acts of insubordination, inattention, laziness or just plain rudeness should also count. But the government discounts these: “Unsatisfactory performance (e.g. an employee is unable to perform job duties) or minor misconduct (e.g. lateness or not coming to work) are not considered just cause.”

It’s worth noting that none of these guidelines are set out in the Employment Standards Act, the statute Windsor-Lee was found to have contravened. They are the work of employment tribunals and court rulings, which over time have continually narrowed the grounds for legitimate dismissal.

A cautionary note is needed here. None of us would wish to revisit the bad old days when employers could fire staff members for purely trivial acts. Workers are entitled to a robust defence of their rights.

But returning to the case at hand, if staff members can repeatedly ignore reasonable directives about workplace behaviour, discipline goes out the window. Other employees, seeing that there are no consequences for disobedience, will be tempted to follow. That can rapidly lead to a breakdown in morale, and to a toxic worksite.

The second issue concerns the steps an employer must take before firing a worker.

Here is the procedure laid down by the government: First, employees must be told clearly what the employer’s reasonable standards are. Next they must be told they aren’t meeting those standards.

Then they must be given reasonable time and help to meet the standards, and warned they will be fired if they do not improve their behaviour. Finally the employer must show that the employee still didn’t comply with reasonable standards after all of the above.

It takes months, if not years, to meet all of these requirements. Extensive record-keeping is needed to show that each of the necessary steps were taken.

Many employers find this process so burdensome, they simply put up with lazy or inept staff members.

Small businesses, in particular, have difficulty with all the paperwork involved, and yet they are the most vulnerable. It seems unfair to impose on them complex regulations that may be far beyond their means.

It does appear, on balance, that the standards required to dismiss employees have swung past a point of reasonable balance. The rights of workers must be protected.

But if Windsor-Lee was not entitled to dismiss a disobedient and disruptive staff member, what rights do employers still retain?

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