Can an employee be fired without pay for poor performance?
In Ontario, almost all employees are entitled to notice of termination or pay in lieu of notice under the Employment Standards Act. One exception is when an employee commits wilful misconduct that is not trivial and has not been condoned by the employer.
This is a very high standard. Courts have found that it requires proof that the employee was “being bad on purpose.” Poor performance won’t meet that standard unless an employer can prove the employee was deliberately performing poorly.
Many employees are entitled to notice or pay in lieu beyond just what the Employment Standards Act requires. This is called common law notice. Courts determine an employee’s common law notice by considering a number of factors, but the most important are generally the employee’s age, length of service, type of job, and the expected market for similar jobs.
But an employer doesn’t need to provide common law notice or pay in lieu if they have just cause to dismiss the employee.
Poor performance can be just cause for dismissal, but only if the employer follows a proper process. A single act of poor performance must be extremely serious to justify cause for dismissal.
The proper process usually involves performance management, escalating warnings, and a final warning that makes it clear to the employee that they will be dismissed for just cause if they don’t meet certain criteria by a specified date. The criteria and time to improve must be reasonable.
For employers dealing with a poor performer, it is important to get legal advice early so they can make sure they’re applying and documenting a proper process.
For an employee whose employer alleges just cause or wilful misconduct, getting prompt legal advice is also important because it is not unusual for employers to make these allegations when the law likely doesn’t support them.
This article was originally published by The Hamilton Spectator.
