You have probably heard of the Omarosa / Trump story by now. Put simply, reality TV star and former White House special assistant Omarosa Manigault Newman surreptitiously recorded conversations between President Trump and Chief of Staff John Kelly. While we do not know how the recordings were captured, this does raise questions about whether employees can - and more importantly, whether they should - record conversations in their workplace.
As my latest First Reference Talks blog post recounts, I have often discussed the need for warnings in the context of summary dismissal. While some situations will justify dismissal based upon a single incident, in many cases our courts and arbitrators will require progressive discipline. Whatever the steps may be, it is critical that the messaging to the subject employee be clear: the conduct or behavior is unacceptable, and further instances will lead to discipline, which can include termination for cause.
Unfortunately, many managers and employers are reluctant to make such “threatening” statements, and they dilute the message to the point where in some cases, it is unrecognizable. Anecdotally, and in cases that I have been directly involved with, I have heard employees make statements to the effect that while they knew there was some concern regarding the conduct in question, they had no idea the situation was so serious and that they could lose their job. As a result, they looked at the matter as a relatively trivial one, and did not make any effort to change. In other words, what they would tell, or have told, a judge or arbitrator is that based upon the messaging they had received, they had no idea how serious the situation was and that their job was in jeopardy. If they had known, they would have made efforts to address the concerns.
This issue is particularly relevant with respect to “less culpable” or “non-culpable” issues, such as absenteeism (in some cases). In Saskatchewan Gaming Corporation (Comrie), the grievor had addiction issues and used alcohol and drugs almost daily. Not surprisingly, she missed a lot of work; during her last two years of employment, her absenteeism rate was 21.2%, compared to the workplace average of 9%.
The issue was defined as innocent absenteeism, and the arbitrator confirmed that the legal test to be applied is as follows:
- was the absenteeism excessive;
- was the employee warned that his or her absence was excessive and failure to improve could result in discharge; (emphasis added)
- was there a positive prognosis for regular future attendance at the time of dismissal; and
- if the absenteeism was caused by an illness or disability, did the employer attempt to accommodate the employee to the point of undue hardship prior to dismissal?”
With respect to the second issue, the arbitrator noted that:
…there does not appear to be any particular format or formula for what is sometimes termed “notice” to the employee and sometimes a “warning”, as long as it is effective in the context of the facts and circumstances in each case. The main requirement is that the warning be effective from the standpoint of a reasonable employee. The reason for this is that the employee is being terminated for something that is “not blameworthy” and likely “beyond their control”, so before taking such a serious step, the arbitral law has dictated that the employee be given a reasonable chance to prepare himself or herself for a typically climactic event, namely the loss of one’s job. Some of the more important considerations would include the following:
a. From the objective standpoint of a third party observing all the facts and circumstances, should the employee reasonably be expected to have clearly understood there was a real risk that his or her job would be terminated if there was no improvement in his or her attendance?
b. Was the warning “hidden” or “minimized” or “confused” in any manner that made it less than effective? In this regard, comparison might be had to the extensive literature on when a waiver of liability or exclusion clause will be considered valid against a purchaser of a product or service.
This section of the decision is particularly instructive, noting that the employer must advise the employee:
…that not only was his or her absenteeism rate excessive, but that his or her job would be in jeopardy if the rate did not improve. The arbitral case law does not prescribe whether the warning needs to say the employee’s job “could” be terminated, as opposed to providing the much clearer and effective warning that such position “would” be terminated absent some improvement in the rate … However, regardless of the actual language, the point of the warning is for it to be effective.
In this case, the grievor had received as many as fifteen warnings. While that might seem to be sufficient to justify dismissal if there was no improvement, the problem for the employer was that they all used identical language that was intended not to be seen as disciplinary or punitive. They indicated that the employee could be dismissed, but there was never any clear warning that she would be dismissed if her attendance at work did not improve.
Ultimately, the arbitrator found that the “warnings” given were ineffective. As a result, the dismissal was overturned and the grievor was reinstated.
To many readers, this will be yet another example of our liberal system of employment and labour law which protects employees and allows them to escape unscathed when they clearly should be penalized for their conduct. After all, this individual missed more than double the shifts than the average employee in the company did, and was given not one, not two, but as many as 15 warnings! Unfortunately, the warnings were so watered–down that they lacked any real meaning. The employer could not clearly show that it had told the employee that a failure to improve would lead to termination of her employment. Particularly since this case involved innocent absenteeism, the failure to provide clear warning was critical.
Whether employers are dealing with culpable or non–culpable conduct, it is imperative that they engage in appropriate discipline which should include clear warnings regarding further discipline, and dismissal, if the actions are repeated or there is a failure to improve. Our courts have made it clear that progressive discipline is required in most cases, and while it may seem to be obvious to some, employers should explicitly warn the employee of the consequences of future transgressions. Otherwise, employees may be able to avoid the consequences of their actions.
To learn more about forms of appropriate discipline, employers are welcome to contact us for advice. Similarly, employees subject to an impending dismissal are encouraged to learn more from us about their rights.