Employers in Alberta can terminate an employee for any reason; however, in most cases, proper notice will be required. While it is possible to fire an employee without notice, the reason for the termination must be serious enough to withstand judicial scrutiny, or the employer could be liable for damages for wrongful dismissal. If an employee were to engage in criminal behaviour on the job, for example, such as stealing from the workplace or committing fraud, this would often be considered sufficient cause for termination without notice. But what about an employee who is convicted of a criminal offence unrelated to their employment? What rights does an employer have if their employee is sentenced to jail time which would prevent them from working for a long stretch of time?
This was the question raised in a recent employment hearing before an Alberta arbitration board, which held that an employer was justified in terminating an employee for cause after the employee was sentenced to two years in jail.
Criminal Records and Discrimination Under Human Rights Legislation
In some jurisdictions in Canada, past criminal offences or convictions are a ground protected by human rights legislation in an employment context. For example, in Ontario, one of the protected grounds in employment situations under the provincial Human Rights Code is a person’s record of offences. In Quebec, the provincial Charter of Human Rights and Freedoms goes further, saying an employee may not be dismissed due to the fact that they were convicted of a criminal offence if the offence is unrelated to their employment.
In Alberta, s. 7 of the provincial Human Rights Act lists a number of grounds for which a person is protected in employment situations. The list does not contemplate criminal convictions or past criminal records as a protected ground. Therefore, an employee who is dismissed as a result of being sentenced to jail would have difficulty objecting to the dismissal on human rights grounds.
It should be noted that this may be different when it comes to employment in a federally regulated industry such as transportation, banking, or telecommunications because employment in these industries is subject to federal regulation rather than provincial. The federal Human Rights Act protects against discrimination for “conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”.
In the recent decision EPCOR Utilities Inc. v. Civic Service Union 52, the majority of a 3-person arbitration board found that an employer was justified in terminating an employee’s employment for cause after she was sentenced to 2 years in jail.
Employee with Long-Time Gambling Problem is put on Paid Leave
The employee, AB, had been with the Edmonton-based utility for nearly thirty years when she was charged with theft over $5,000 in 2019. AB had a long-term gambling problem and began to steal money from her elderly mother using e-transfers in 2017. She had taken approximately $220,000 by the time her brother noticed the transfers and contacted the police.
AB’s immediate supervisor was made aware of the charges in mid-April 2019 by another team member, and he contacted AB to discuss it. She was placed on paid leave, and her security credentials were revoked while the employer conducted an internal investigation.
Employee Sentenced to up to Two Years in Prison and then Terminated for Cause by Employer
In mid-June 2019, AB pled guilty and was sentenced to up to two years in prison. She was given two weeks to make arrangements before entering custody. AB met with a representative of her union and her employer on June 21, 2019. At the meeting, the employer provided AB with the option of early retirement, as she was one year away from eligibility for full retirement. She declined the offer and requested she be placed on unpaid leave to allow her to serve her sentence. The employer declined, and presented her with a Letter of Termination, effective immediately, citing frustration of contract as the cause. Since AB would be in jail for a considerable period of time, she would be unable to work and therefore unable to fulfill her obligations under her employment contract. AB ended up serving eight months total before her release when she was placed on parole and then probation.
Union Files a Grievance against the Employer claiming Termination for Cause was Unjustified
The Union initiated a grievance against the employer, stating that termination for cause was unjustified, severe, and in breach of the collective agreement. The Union’s position was that the employer should have allowed AB to take an unpaid leave of absence to allow her to serve her sentence, and then return her to work. The employer argued it had been justified in terminating for frustration of contract, and in declining an unpaid leave of absence.
Arbitration Board Upholds Termination for Cause of Employee with Nearly 30 Years of Service
A two-person majority of the panel sided with the employer, citing the nature of AB’s criminal actions as justification for the employer’s response. Interestingly, the final decision appeared to consider the nature of AB’s crime, rather than the employer’s right to terminate for frustration of contract. Noting that her criminal actions had been intentional, systemic, and carried out over a period of months or years, the panel held that it did not matter that the crime had been unrelated to work. The employer’s decision to terminate for cause in this situation was found to be “reasonable and fair”.
Dissenting Opinion: Employee’s Record of Service “Worthy of Protection”
One member of the three-person panel dissented, stating that the employer had failed to appropriately balance its interests with those of the employee. While placing the employee on an unpaid leave would have caused some inconvenience to the employer, leaves of up to twelve months were contemplated in the employee’s collective agreement. Further, the employer had provided no evidence that a leave would have resulted in a disruption of service or would have caused AB to have difficulty reintegrating into the workplace once her sentence was finished.
AB, meanwhile, had served the employer for nearly thirty years without any record of disciplinary issues. Given the competing interests of the two parties, the dissenting opinion held that the decision to terminate for cause was unjustified.
Contact DBH Law, Calgary Employment Termination & Wrongful Dismissal Lawyers
The lawyers and staff at DBH Law rely on our quarter-century of litigation and advocacy experience to provide our clients with pragmatic, strategic, and responsive legal guidance on various employment law disputes. We regularly advise both employees and employers on their rights and obligations with respect to termination and wrongful dismissal. We believe in relationship-building, and provide tailored, trusted, client-focused advice. Contact us online or by phone at 403-252-9937 to discover how we can help you today.
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You’ve decided it’s time to let the low performer on your team go. You’ve covered your bases in terms of documentation, and you’ve coordinated with HR. But now you have to have the dreaded conversation. What’s the best way to deliver the news? Who should be in the room with you? What do you say and not say? And how do you tell the rest of the team?
What the Experts Say
“Firing is the single most difficult thing we ask leaders to do,” according to Dick Grote, a management consultant in Dallas, Texas, and author of How to Be Good at Performance Appraisals. “Even when the business justification is clear, you’re sitting down and telling someone that he’s no longer getting a paycheck and that when he wakes up in the morning, he has no place to go. That’s tough.” But firing is a necessary evil, says Jodi Glickman, author and founder of communication consulting firm Great on the Job. “As the manager, you have to bear in mind what’s right for the company.” You have to focus on the fact that “the firing makes good business sense and hopefully is in the best interest of the person and your team going forward.” While it will never be easy to deliver bad news, here are some tips on how to manage the process.
Don’t drag your feet
The prospect of firing someone you’ve worked with for years — particularly someone you know well and respect — is daunting, but you mustn’t let your personal agony delay the conversation, says Glickman. “When the bad outweighs the good and when the employee is causing more problems than he or she is solving, it’s time for that employee to go,” she says. Of course, firing should be the final step in a fair and transparent process that began long before the actual termination talk — and there should be a trail of paperwork to prove it. Even if the documentation process is cumbersome, stay focused. “Managers rarely regret acting too quickly on a termination, but they have regretted waiting too long,” says Grote. If you’re still having trouble mustering the courage to act, think about your team. After all, they’re “the ones who are picking up the slack and maybe working longer hours because the person [you need to fire] is not doing his job correctly.”
Make HR your ally
Before you schedule the conversation, Grote suggests double-checking your plans with HR. “You’re not asking for permission — you’re the boss; you make the decisions — but you’re asking if there’s any reason you shouldn’t go ahead with your plan to fire Louie on Tuesday morning,” he says. First, you want to ensure that an HR rep is able to attend the meeting, since it’s legally practical and more comfortable to have someone else in the room. Second, the HR department can offer “a fuller picture” of the employee’s extenuating circumstances. “In this litigious society, HR is your ally in filling in any blanks.” HR might tell you, for instance, that Louie’s pension vests on Wednesday, so firing him Tuesday might be viewed as suspect in court. Or HR might tell you that Louie’s wife starts cancer treatment on Monday afternoon, in which case firing him Tuesday could be seen as inhumane.
Keep it short
The words you use to terminate an employee should be simple and to-the-point. Don’t waffle. “Go somewhere private and then lead with the punch line,” says Glickman. She suggests you begin by saying, “I have some bad news for you. Today is your last day here.” Then state the reason for termination in one simple sentence. “Be transparent,” she says. “We’ve let you go because you didn’t meet your sales targets” or “You’ve not been a good cultural fit here.” It’s important to use the past tense because it “precludes arguments about second chances,” says Grote. “The plug has been pulled.” If the employee tries to argue or lashes out at you, try not to get caught up in responding. “It’s a natural human thing to want to say ‘I’m sorry,’” says Grote. But when it comes to firing a poor performer, he recommends couching your regret in terms where “personal responsibility lies squarely on the individual.” He suggests saying something like, “‘I’m sorry that the situation has gotten to this point.’”
Stay in the room
HR may be your ally, but you shouldn’t expect it to do your dirty work. While some experts contend that you needn’t say anything more or even remain in the room after the initial pronouncement, Grote vehemently disagrees. “Leadership demands compassion,” he says. “You were the agent of a terrible thing that has just happened in this person’s life. Don’t run away, and don’t force HR to pick up the pieces.” You should be prepared to “speak as needed and answer questions as they come up.” Before the meeting, you need to be well versed on practical matters — the details of the former employee’s severance agreement, for instance, and what happens to his benefits and unused vacation time. Of course, there will always be issues you hadn’t considered. If something comes up, Grote recommends saying, “Let me apologize, I hadn’t thought of that,” and then turn it over to HR. But make no mistake: “This is your baby.”
Show compassion
Firing may be a difficult chore for you, the manager, but for the person who’s being fired, it’s downright traumatic. So empathize. “Offer to be helpful,” says Glickman. “If you genuinely believe someone is a good person who has talents and abilities that could be useful elsewhere, tell her that you’re very happy to provide a reference, or offer to make introductions.” Grote suggests scheduling a termination at the end of the workday, bearing in mind office optics. After the conversation, he recommends saying, “Let me walk you back to your desk, where you can pick up your belongings, and then we’ll both walk out of the office together like it’s a normal day.” He adds, “It’s showing your humanity.”
Talk to your team
After the person you’ve fired has left, Glickman suggests gathering the colleagues affected by the termination to address the matter. “The message should be direct and straightforward,” she says. Do not reveal reasons behind the decision — that’s confidential, and besides, “It sets a bad precedent to badmouth a former employee.” Recognize that the office rumor mill is likely churning. Grote suggests this script: “As some of you may already know, Diane is no longer part of the organization. I can’t go into details because that’s confidential information and I want to ensure Diane’s privacy. If you have suggestions about how to minimize the impact of Diane’s absence, let me know.”
If you think people will start to worry about their own jobs, you might assure them that the person was fired for cause, that the organization is not eliminating roles. You can also divulge a few details if you want to send a strong message to your team about the fired employee’s poor behavior. In this case, Grote recommends saying, “Diane’s employment has been terminated. I’m not going to go into all the details, but I will say that Diane acted in violation of our sexual harassment policy. We do not tolerate that.”
Focus on the future
Terminating an employee is an emotionally draining task, but for the sake of your team, you mustn’t wallow. “At this point, it’s about forward momentum,” says Glickman. “Focus on the now.” The firing likely presents short-term challenges for your team — namely more work. “So it’s up to you to come up with a strategy for how to manage the workload while you look for a replacement.” Acknowledge that there’s more work to do in the short term, but talk about a goal. “Say, ‘It’s going to hurt for three months, but here’s the plan,’” she adds. “You want to ruthlessly move forward on the future.”
Principles to Remember
Do:
- Enlist HR to help you manage the process and answer questions as they arise
- Show compassion for your fired employee — if you genuinely believe he has talents that could be useful elsewhere, offer to serve as a reference or provide other help
- Communicate the news to your team in person but do not divulge the details behind the decision
Don’t:
- Delay in terminating a poorly performing worker when the cost of keeping that worker is greater than the disruption of letting him go
- Waffle or be long-winded — the words you use to fire someone should be simple and to-the-point
- Expect HR to do your dirty work — after you’ve told the person he’s fired, stay put and be prepared to answer questions as they arise
Case Study #1: Demonstrate compassion and respect
John Stieger, the chief marketing officer of Wilke Global, an Ohio-based company that provides customer service software to clients, says he hates firing people. “Anyone with empathy can at least understand how losing a job will impact a spouse, children, and others who are blameless,” he says.
But over the course of his 20-year career, he has had to preside over multiple employee terminations at Fortune 500 companies. One situation in particular stands out.
John made a decision to redesign his team, and after matching people to new roles, it became clear that several employees weren’t right for their jobs and needed to go. Preparing for the conversations was “simply awful,” he recalls. “When you need to give someone difficult news, your instinct is to try to soften the blow.”
But this “workplace version of ‘it’s not you, it’s me,’” is a dangerous game, he says. “You can easily muddy the waters, confusing people and opening potential legal liability in an attempt to make someone feel better and maybe even shift blame away from yourself.”
With the help of HR, John prepared a simple, brief statement for every conversation that explained the reorganization and the termination. He also said, “I do not have another job for you. Unless you identify another role in the company, your last date will be X. HR is here to tell you a little about what that means and your options. I know this is difficult to take, so we need to set up another meeting for a day or two from now once you have thought this through.”
Some of the employees reacted angrily. Others cried. John offered tissues and did his best to remain calm. “My instinct is to try and make someone feel better, [but] people don’t usually want to be comforted by someone who just fired them,” he says.
In this case, the terminated workers were given a monthlong leave period where they were still technically employed. “I made a point of setting up recurring meetings with each of them to offer my advice on internal or external searches,” he says.
Demonstrating respect and compassion are also important for morale, he says. “How you treat people on their way out the door does not go unnoticed by the rest of the organization.”
Case Study #2: Act decisively and focus on your team’s well-being and productivity
Moe Glenner, management consultant and author based in South Bend, Indiana, vividly remembers the first time he ever had to fire an employee. At the time, Moe worked for a medium-sized transportation company supervising a small team. One of his direct reports (we’ll call him Anthony) had been with the organization for two years and had serious “performance deficiencies.”
Moe tried to remedy the situation in a variety of ways. He consulted HR, which advised him to “document Anthony’s [poor] performance.” He met Anthony privately in hopes that they could come up with a “collaborative, mutually agreed” upon performance improvement plan, but it didn’t work. Moe “made discreet inquiries to find out if there were external influences that might be driving Anthony’s poor performance,” but he came up empty-handed. He even called a team meeting to discuss ways members could help “improve everyone’s performance.”
Moe was discouraged. “The team was suffering from Anthony’s continued poor performance. They felt pressure to make up for his deficiencies, and they expressed frustration that nothing was being done to correct the issue.”
Finally, after six months, Moe decided that the situation was not going to improve. He advised HR of his decision to let Anthony go. “HR offered to conduct the meeting so I wouldn’t be involved, but I declined,” he says. “I feel that as a manager I need to deliver both the good and the bad news.”
The termination meeting took place in a private office. “When Anthony walked in and saw the HR person, his facial expression turned blank,” he recalls. Moe says he did “a quick rehash of how we got to this point and told him that effective immediately, his position was terminated.” After the HR person had finished explaining the details of the severance package, Moe stood up, thanked Anthony for his service to the company, and wished him well.
Anthony left the office and Moe called a meeting with his team to announce the departure. Moe says he “didn’t want to add insult to injury by unnecessarily badmouthing” Anthony, since the team was well aware of his performance issues. “I then opened the floor up to suggestions for carrying the load until his replacement could be found and hired,” he says. “I felt that by allowing everyone to engage, it would help alleviate what undoubtedly were mixed emotions from the team.”