Diligence an Essential Ingredient when Dismissing for Incompetence

Previously printed in the CCH’s Focus on Canadian Employment and Equality Rights Newsletter.

Firing for cause, particularly for incompetence, may seem to be a herculean feat for employers. Throw human rights considerations into the mix and it may seem impossible. The following case, however, shows that a combination of clear expectations and diligence can make the impossible possible.

In Parent v. Spielo Manufacturing Inc., 2013 NBQB 394, Ms. Parent, a quality tester, was dismissed from employment for incompetence. Her employment was terminated on a “just cause” basis.

The employer’s method of rating each employee’s performance was based on a scale of 1 to 5. Each employee was required to achieve a score of 3 out of 5 in order to successfully meet the performance standard. In the first year of Ms. Parent’s employment, prior to her maternity leave, she achieved a score of 3.22. Ms. Parent’s son had serious health issues. As a single parent, she was required to attend several medical appointments. She asked her employer to be accommodated. What is important to note in this case is that while the employer agreed to a flexible work schedule, the employer clearly notified Ms. Parent that she had to continue to meet the company’s performance standards.

Within six months of Ms. Parent’s return to work, her performance score did not meet the standard; she received a 2.94 out of 5. A performance improvement plan was implemented with a review at three months. At the review, Ms. Parent still did not meet the standard. She was given written notice about her performance improvement plan, told what she needed to do in order to improve, and advised that her performance would be reviewed in 30 days. She was provided with further written notice 30 days later. The employer put Ms. Parent on notice that immediate improvement was required or termination of her employment was a possibility. A plan was outlined for Ms. Parent. Pursuant to the terms of this plan, she was required to meet with her supervisor every two months to discuss her progress and was also required to maintain a daily log. Two months later, Ms. Parent was provided with yet further written notice that she would be dismissed from employment if her performance continued to be substandard.

Ms. Parent’s year-end performance review showed a final score of 2.78 out of 5. Before the employer could meet with Ms. Parent to discuss the performance review, Ms. Parent gave the employer a letter stating that she would be off work to receive surgery. Upon her return from this medical leave, Ms. Parent was dismissed for cause. She subsequently filed a claim for wrongful dismissal.

Ms. Parent argued that performance was not the true motive for her dismissal. The real cause, she suggested, was discriminatory; she had taken maternity leave and required accommodation to deal with her son’s health issues. She disputed that the evaluations were objective measures of her performance; rather, they were used solely to justify her dismissal.

The New Brunswick Court of Queen’s Bench disagreed and found that the employer had accommodated her situation. The Court noted that Ms. Parent was the only employee to receive a flexible work schedule and concluded that the employer’s concerns about her performance were legitimate.

The Court observed that incompetence can result out of two situations. One is where an employee is simply incapable of performing the job. The other is where the employee is capable but irrespective of his or her capability, consistently fails to meet a reasonable standard of performance. The Court concluded that Ms. Parent feel into the latter category as she had previously been successful in meeting the standard. Her dismissal from employment was justified as the evidence showed that she was unlikely to meet the performance standard despite repeated notice, support and opportunity to improve over an ample period of time.

In this case, the employer was diligent in creating a performance improvement plan, following up when it said it would and providing written warnings and sufficient time for improvement. This of course takes an incredible amount of energy and effort. But because of the employer’s diligence, the termination of Ms. Parent’s employment for cause was upheld by the Court.

The take-home message for employers when faced with employee incompetence is this:

1. Ensure that performance standards are well-known and consistently applied.
2. Ensure that performance measures have an identifiable target for success. A numerical scale may be a good idea because it can provide clarity and objectivity.
3. When employees do not achieve the target, diligence and documentation are key. An employer must provide the employee with time and also guidance and training as and when necessary in order to allow him or her to meet the target.
4. If an employee continues not to meet the standard, the employer must provide an unequivocal, written warning that immediate improvement is required and disciplinary action, including dismissal, may result.
5. A final written warning will be appropriate where clear expectations have been communicated, any necessary guidance or training has been provided, sufficient time has passed and improvements are not forthcoming.