Time Lapse Between Warning & Termination Leads to Wrongful Dismissal Finding

Employers generally have the right to terminate someone’s employment for any reason they see fit, even if that reason is unrelated to anything the employer has done (or failed to do). When someone is terminated for cause, the employee is understood to have conducted themselves in a way that gives the employer cause to terminate them without providing notice (or pay in lieu of notice). However, as we see in a recent decision from the Alberta Labour Relations Board, how an employer handles inappropriate conduct from an employee may inform whether their right to terminate them with cause is still available.

Barbershop employee warned about his temper and outbursts at work

The employee was hired by the employer, who operates several barbershops, in July 2020. He started working about a month later due to COVID-19-related business closings. He held his position with the employer until March 20, 2023.

On July 25, 2022, a customer left a negative review of one of the employer’s barbershops. The employee confirmed the review was in relation to services he provided to a customer. The employer counselled the employee about being professional in his duties.

The employee had, on multiple occasions, verbally accosted and swore at colleagues and his manager. The general manager advised the employee that a failure to change his negative attitude and control his temper would be met with sanctions. After the employee had failed to perform his opening and closing duties and exhibited a further outburst at the general manager in February 2023, a final warning was entered into an Employee Discussion Log. The note concluded that he would be terminated if the employee’s attitude and work did not change.

Employee terminated after multiple warnings and failure to improve attitude

The general manager testified that he had wanted to terminate the employee following the events of February 2023. However, the business owner was travelling at the time, and the general manager did not want to terminate the employee without first talking to the owner. The general manager said the employee refused to sign the Employee Discussion log.

When the owner returned from her travels in March 2023, after meeting with the general manager, she decided to terminate the employee. She wrote a letter to the employee stating that his unprofessional behaviour in front of clients, negative attitude, and frequent outbursts towards management were the reasons for the termination.

The general manager testified that while the employee’s behaviour did not improve between the February incident and the termination in March, no incidents required the general manager’s attention during that time.

Alberta Employment Standards requires notice and/or termination pay

Alberta’s Employment Standards Code outlines the differences between termination with cause and without. It states:

55(1) An employer may terminate the employment of an employee only by giving the employee

(a) a termination notice under section 56,

(b) termination pay under section 57(1), or

(c) a combination of termination notice and termination pay under section 57(2).

(2) Termination notice is not required

(a) if the employment of the employee is terminated for just cause …

Under section 57, instead of providing a termination notice, an employer may pay an employee “termination pay.” This pay is at least the wages the employee would have earned had they worked their regular hours for the duration of the termination period. The employer may also give the employee a combination of termination pay and notice.

Two categories of “just cause” when terminating employee without notice in Alberta

In a 2001 employment standards appeal decision, the Alberta Labour Relations Board wrote there are two categories of “just cause” when terminating an employee. The first category is when the employee’s conduct is sufficiently serious to justify immediate dismissal. Examples of this include dishonesty, deliberate disobedience, unlawful behaviour, etc. The second set of conduct falls short of being serious enough to justify immediate dismissal. In these cases, an employer must first warn the employee that continued behaviour will result in termination.

Employer failed to establish just cause due to gap between final warning and termination

In this case, the Board acknowledged the employee’s conduct was serious enough to fall into the first category. However, since the employer chose to pursue the direction in the second category, the Board found that they had to continue down this path. In this case, the employee did not continue to exhibit the behaviour that landed him a warning. As a result, the employer was found to have terminated the employee without cause. As a result, the employer was found to owe the employee $1,500 in payment in lieu of notice, holiday pay, and vacation pay, amounting to just under $4,000.

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