Don’t Jump the Gun! Why Progressive Discipline is an Employer’s Secret Weapon in Termination for Cause

As an employer, it may seem tempting to fire an employee who is underperforming or causing workplace issues. In fact, terminating their employment might seem like the quickest fix, but in most cases, it may not be true – especially in an employment termination for cause.

In Ontario, employers have an important tool at their disposal whenever they intend to rely on an employee’s misconduct or poor performance as reasons for termination for cause: progressive discipline. In this Ontario employment blog, we dive into why progressive discipline should be in every employer’s tool shed when dealing with employee performance or conduct issues, which through the help of an experienced Ontario employment lawyer, can save you time, money, and workplace legal issues (including wrongful dismissal claims).

What is Progressive Discipline?

Many courts have insisted that, except in the case of misconduct so egregious or serious that it precludes continuing the employment relationship, employees are entitled to progressive discipline in the form of a clear warning and a reasonable opportunity to mend their ways. An employer cannot treat matters of which it was previously aware, but which it never brought to the employee’s attention, as cumulative cause for dismissal (this is referred to in law as “condonation”). As such, a termination without prior warning is usually found to be wrongful, even in the absence of a formal progressive discipline policy established by the employer, and the assertion of cause is even less likely to be upheld where the employer has a stated progressive discipline policy but has failed to follow it prior to dismissal. In fact, in situations where an employer has explicit policies that call for progressive discipline, the sequential steps spelled out in those policies can be bypassed only in instances of serious misconduct such that summary dismissal is the only reasonable option.

However, while in most cases, progressive discipline and/or providing employees with prior warnings will still be required for employers to successfully defend a wrongful dismissal claim, if an employee engages in a number of incidents of misconduct in a short period of time, an employer’s failure to provide prior discipline may not necessarily be fatal to upholding a termination for cause. In a few cases, the courts have considered the entire factual circumstances surrounding an employee’s alleged conduct, and concluded that incidents of misconduct should not be viewed in a vacuum. In fact, in circumstances where an employee operates with managerial authority with little oversight, a higher degree of honesty, loyalty and good faith to the employer may be required, which more often than not could result in significant penalties for misconduct.

Case in Point

In a wrongful dismissal claim, the court in Goruk v. Greater Barrie Chamber of Commerce, 2021 ONSC 5005 upheld an employer’s decision to terminate a long-serving employee for just cause. This case specifically stands out for the rate fact that the employee had no prior discipline. Moreover, the incidents the employer relied on to build a successful defence for wrongful dismissal would not, generally speaking, warrant or justify a termination for cause in most cases. 

What Happened in This Wrongful Dismissal Case?

The Decision

What is a Dismissal for Just Cause?

Ontario employment law recognizes the right of an employer to dismiss an employee summarily where the employer has “just cause” for terminating the employment relationship. Generally, the legal test for employers to justify a termination for cause determining whether the employee’s misconduct was sufficiently serious that it struck at the heart of the employment relationship. To answer that question, the court must:

1. determine the nature and extent of the misconduct;

2. consider the surrounding circumstances; and

3. decide whether dismissal was warranted.