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Everyone Deserves a Second Chance, But How Much Tolerance is Too Much? Part I – Employers

In an employment context, a certain amount of “taking the bad with the good” is necessary for a functional workplace.  It is a rare employee who is never dissatisfied with some aspect of his or her job, and likewise it is a rare employer who is never dissatisfied with some aspect of his or her employee’s performance.  A healthy workplace requires compromise.  Short of a divorce, losing one’s job is one of the most difficult and traumatic transitions a person can go through in life, and it is often no easier for employers to lose and replace key employees.  As such, there is a degree of recalcitrance on both ends of the employment relationship to declare a state of affairs to be unacceptable and terminate the relationship.  This is a good thing, as it leads to a stable workplace.

That being said however, employment law in Canada is structured in such a way that an aggrieved employer or employee must act to assert their rights in the employment relationship in a reasonable timeframe or risk losing out on the benefit of those rights.  If an issue in the employment relationship is not addressed for an extended period of time, an employer cannot then go back and claim this issue to be just cause for termination, nor can an employee go back and claim that the issue amounts to a constructive dismissal.  This month’s blog post will focus on the rights and responsibilities of employers in this regard.  Stay tuned next month for a post on the corresponding rights and responsibilities of employees.

Employers should always be aware that when an employee demonstrates behaviour which objectively amounts to misconduct or incompetence, justifying dismissal for cause, the employer may rely on it as cause for termination without notice, only if the impugned behaviour was not condoned by the employer.  What constitutes “condoning” behaviour in an employment context varies based on the circumstances.  However, here are some general principles:

Knowledge

To be said to have condoned certain behaviour, the employer must, at very least, have been aware that the misconduct allegedly being condoned was occurring prior to termination.  Upon being made aware that the conduct is occurring, the employer has a reasonable period of time to act prior to having been said to have condoned the conduct.  Larger employers may take some solace in knowing that middle management’s persistent failure to enforce employer policies for an extended period of time does not in itself amount to condonation as long as upper management does not know about or condone these failures (Thorvaldson v. Motorola Canada Ltd. (1993), 84 Man. R. (2d) 161).

Promotions

An employer who provides positive performance reviews, promotions, and increased compensation to an employee after known undesirable behavior has occurred can be said to have condoned that behaviour.  The employer cannot ignore the conduct of the employee, decide that the poor conduct is outweighed by his or her contribution to the business and then later, with no new circumstance, use that conduct as cause for dismissal (Miller v. Wackenhut of Canada Ltd. (1989), 31 C.C.E.L. 245 (Ont. Dist. Ct.).

Warnings

An employer who tolerates certain behaviour for a prolonged period of time, but then begins to issue warnings to an employee to desist from this behaviour will not be held to have condoned the behaviour.  Indeed, warnings are perhaps the best evidence an employer may rely on to demonstrate that the behaviour in question was not condoned.  In general, an employer will not be penalized for showing excessive patience with a misbehaving employee, provided that the employer makes it clear to the employee that the impugned behaviour is unacceptable (Riley v. Crown Trust Co, 1977 CarswellAlta 351).

Bottom Line

This post does not constitute legal advice and is by no means an exhaustive survey of issues in the rather sticky law of condonation by employers of undesirable conduct on the part of employees.  The intent is to give an idea of the broad strokes that a court may consider in these types of cases.  Always consult with an employment lawyer prior to taking any action to terminate an employee.

The next post in this series will discuss the employee’s rights and obligations when it comes to condoning negative conduct of their employers.

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