Annoying is not a “capital offence”: the difference between irritating and incompatible: when is it okay to dismiss an employee for behavior in Canada?

Firing is, effectively, a “capital punishment” in terms of employment law. Before dismissing that annoying employee, ask yourself important questions. Does this employee’s infuriating behaviour rise to the level of a “capital offence?” Did it tangibly harm the business?

Annoying, by itself, is not grounds for summary dismissal. You’ll likely find that most behaviour does not rise to the level of harming an employer — a capital offence — unless specific “damage” can be tangibly proven. In other words, the annoying complainer who never stops bad-mouthing the boss, or the disrespectful co-worker who gossips about everyone in the office, only rises to the level of dismissal if it can be proven to reduce productivity or morale [and even then, be cautious] — something tangible and provable. That employee who is always on the phone with friends? Ask yourself: how did that damage productivity, and did they get their work done? Always late for work? Ask yourself, did they meet their production deadlines? Even if you believe it is impacting morale and productivity, ask yourself, “Can I prove it?”

 

It is vital to have a full-time HR Manager or an outsourced HR Management Team to prevent team and productivity issues that can lead to unnecessary termination. The first step, in the case of a behavioural problem, is coaching. The employee should also be referred to the relevant section of your Employee Handbook (You have one, right?). Finally, the warning and an opportunity to remedy is critical.

 

NOTE: No legal advice is offered or given in this informational feature. Always consult a legal expert for real-world scenarios.

The bottom line is — it’s complicated and you need a dedicated and expert HR Manager. The underlying bottom line is — don’t assume anything: ask an expert, lawyer or counsellor, if in doubt. The bottom, bottom line: just being annoying is not just cause for termination. For these reasons, it is essential that your company have a dedicated and trained HR Manager — or outsource this service. [Contact the experts at Pivotal to discuss outsourced HR Management Services. The contact form is below.]

Threshold is high

“The threshold is high for what has been dubbed “the capital punishment of employment law” — according to Stuart Rudner of Rudner Law. [1]

So, no, the idle gossiper who never seems to stop talking is not likely to meet the threshold. Annoying is not, usually, a capital offence.

Also, in the case of behaviour, it is vital the company give sufficient warnings, and give the employee an opportunity to amend the damaging behaviour [see below.]

Because the threshold is high, it is vital for corporations to have written staff guidelines, a policy of written warnings, an on-hand coach or manager to help mitigate situations, and an active, dedicated manager ready to intervene before it becomes damaging. For most companies, this means a dedicated HR Manager, or an expert outsourced HR Management team. [Have questions about outsourcing? Ask Pivotal>>]

All companies, large and small, should have a written — and carefully thought out — Employee Handbook. Not only can it prevent issues from arising, but it also helps with future coaching situations, warnings, and — if necessary — proper summary dismissal.

Just Cause and Summary Dismissal

The general governing concepts for “just cause” dismissal would include:

  • neglect of duty
  • incompetence
  • disobedience

With two of these, they can also be considered behavioural — calling for warnings and coaching first. But, what about something like “dishonesty?” Would dishonesty be enough? Likely not, unless it can be shown to create morale issues, a destruction of a working relationship, loss of a client, or something tangibly damaging.

Supreme Court Decision: McKinley v B.C. Tel

“One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or indirectly inconsistent with the employee’s obligations to his or her employer.” [1]

Ask yourself what a trial judge would instruct the jury in a case like McKinley v B.C. Tel:

“In accordance with this test, a trial judge must instruct the jury to determine: (1) whether the evidence established the employee’s deceitful conduct on a balance of probabilities; and (2) if so, whether the nature and degree of the dishonesty warranted dismissal.”

 

Body odour does not, by itself, rise to a cause for dismissal unless there are health and safety risks, or obvious damage to morale and productivity. To manage this, a key first step is the Employee Handbook and hands-on guidance from the HR Manager or outsourced HR Management Team.

 

Body odour: Calvin Klein Case

In the authoritative book, Just Cause: The Law of Summary Dismissal in Canada, co-author Matthew Certosimo, a partner at Borden Ladner Gervais LLP, cited a case of “body odour” [2].

The case involved a Calvin Klein fragrance demonstrator “who was terminated with cause for having a difficult personality, for constantly complaining about management and payroll, and because of her body odour.” [3]

“Ironically, co-workers complained that this fragrance demonstrator had bad body odour. In the end, the trial judge concluded that the employer would have had just cause had they provided the employee with warnings and an opportunity to address the concerns.

“Unlike wrongdoing, such as theft, where employees aren’t given another chance, in cases such as these employers are typically required to provide warnings and a chance to rectify the problem.”

Smelly problem: body odour or perfume?

Both body odour and perfume are frequent complaints that can — but usually do not — rise to the level of dismissal. Both the “foul smell” of body odour and the overly sweet smell of perfumes can be distracting, inhibit productivity and — in the case, for instance, of retail sales — even rise to the level of loss of revenue. In the case of health workers or food workers, both can be prohibited on the basis of health and well-being. However, it’s not an easy issue, and there is no one answer. On this particular issue, legal advice is the best course for both the employer — seeking to remedy — and the employee.

It’s important to understand that body odour may not be a hygiene issue. Health issues can cause bad breath, body odour and smelly gas. Don’t mistake unpleasant for unproductive.

On the other hand, if the cause is hygiene, there can be — possibly  — a workplace health risk. Lawyer Shana French, of Sherrard Kuzz LLP, explains [4]:

“From the employer’s perspective, personal hygiene is potentially a  workplace health and  safety risk.”

But, what determines a health risk? One example rises to the test of risk:

“Say, for example, there is an employee with poor personal hygiene  working in a food processing facility. Then, it’s not only a risk to employee morale, but it’s also public health hazard, and could go some way in damaging the employer’s reputation.”

Remember the warning

Remember that hygiene can be an unfortunate habit and behavioural. In the case of hygiene or perfume, written warnings are called for, along with an opportunity for the employee to remedy the situation. Of course, ask if there are health or other issues involved first. Lawyer Shana French gave the example of an employee in a food processing plant who spit on the warehouse floor and blew on products. In this case, they did manage to correct the behaviour with questions and coaching — long before dismissal was considered. They asked if he had a medical condition.

Communication is key. In the above case, the employee remedied the hygiene situation but was later terminated under probation for poor performance. However, this opened the door for a legal challenge and complaint; he was able to claim he was fired for body odour. Communication, coaching and records are vital.

How to prove it?

The difficulty for employers is acceptable proof. Having a consensus among fellow employees isn’t usually sufficient since there could be some form of workplace harassment or prejudice involved.

Employers should look at some factors, such as:

  • Is this new behaviour? If not, did something happen to trigger the conduct, such as a family situation?
  • Could stress or mental health be a factor? In this case, it’s more difficult for employers, who might have been a contributing factor in the stress.
  • Are other employees complaining about conduct out of bias?
  • Is the situation getting worse? Do coaching and warnings help manage conduct?
  • Is management responsible? For example, unclear directions, unwritten rules in the workplace, no staff guidelines, no coaching, nor human resources manager ready to intervene? [If this is the case, consider engaging an outsourced HR Management Service>>]

Legal Advice — and a dedicated HR Manager

Communication — including a written staff guideline or manual — employee records, coaching and mitigation are keys to successfully remedying an annoying employee issue. This is where a dedicated HR Manager or an HR Management service is indispensable. [Contact the experts at Pivotal to discuss outsourced HR Management Services. Use the contact form below if you have questions.]

To avoid costly legal action on both sides, ensure you receive legal advice before pursuing any questionable dismissals. Summary dismissal is not cut-and-dry, even for probationary employees. There cannot be discrimination. The employee has to be given a chance to improve — except in the case of illegal acts, such as stealing.

NOTE: No advice is offered in this feature. This is simply reporting on past cases and discussing with experts. Always seek legal advice.

Do you have questions about summary dismissal? Do you need a dedicated outsourced HR Manager? Please contact us:


Contact Pivotal

 

NOTES

[1] “Summary dismissal in Canada is complex.”

Summary dismissal in Canada is complex

 

[2] Just Cause: The Law of Summary Dismissal in Canada   [Canada Law Book publisher] https://store.thomsonreuters.ca/product-detail/just-cause-the-law-of-summary-dismissal-in-canada/

 

[3] “Can you fire an employee…” Human Resources Director Canada  https://www.hrmonline.ca/hr-law/terminations/can-you-fire-an-employee-for-just-being-annoying-243960.aspx

 

[4] “Ask a lawyer: Can HR fire an employee for bad body odour?” https://www.hrmonline.ca/hr-news/employment-law/ask-a-lawyer-can-hr-fire-an-employee-for-bad-body-odour-239865.aspx

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