It Just Isn’t Working: The rules on dismissal for incompetence and incapacity

As with many other relationships, parties entering into an employment agreement start off with high hopes that they’ve found the right fit and will make a good match. However, when employer expectations and employee performance don’t align, the parties must make an effort to address the situation. In this session, legal experts will examine the essential elements that must be established in order to dismiss an employee for incompetence and incapacity, addressing issues such as:

• Dismissal for incompetence: What are the criteria that an employer must meet in order to validly dismiss an employee for incompetence or non-culpable performance deficiencies? Are probationary employees subject to different standards? What about temporary employees?
• Duty to warn: What elements must be contained in a warning to ensure that it adequately communicates to the employee that his or her job is in jeopardy? Does it have to be in writing? Can a warning “lapse” after the passage of time? If an employee’s performance improves, will an employer need to issue a new warning if performance subsequently deteriorates?
• Improving performance: Do performance expectations have to be set out as clear benchmarks, or can an employer simply indicate that improvement is necessary? What factors do adjudicators consider in assessing whether the employee has been provided with a reasonable chance to improve? What are some examples of support that an employer could be expected to provide? Are employees entitled to union representation during performance reviews, coaching, or counselling sessions? Will a failure to comply with procedural requirements set out in performance evaluation policies or improvement plans invalidate a dismissal?
• Accommodation and the duty to inquire: Does the employer have a duty to inquire into whether a disability might be contributing to poor performance? When, if ever, will discharge be justified if substandard performance can be linked to a protected ground under human rights legislation, such as disability or family status?
• Incapacity: What are an employer’s obligations in circumstances where a worker has become incapacitated by illness or accident? Does the duty to accommodate require employers to apply lower performance standards or suspend performance reviews of disabled workers? At what point does accommodation reach the point of undue hardship, such that an employer may discharge a disabled employee? What elements must be established in order to justify a dismissal for innocent absenteeism? Can an employer terminate on the basis of innocent absenteeism when the employee is receiving LTD benefits? Are employers in the federal sector able to terminate on the basis of frustration in cases where absenteeism is caused by a work-related illness or injury?