A poor performance cannot be the cause of termination – Toronto Employment Lawyer

What is Overtime & How Is It Calculated?
February 28, 2019
March 13, 2019


There are various types of conduct or misconduct which may give rise to cause for termination.  In the event that cause is proven, an employee is not entitled to wrongful dismissal damages. For the purposes of this writing we will focus on termination based upon incompetence or poor performance, and in what circumstances this would constitute a wrongful dismissal.

Employers expect and the law recognizes that an employee is obliged to display a reasonable level of competence. At the outset of the employment relationship an employee may also indicate his awareness of the duties and responsibilities of the position he is applying for and his qualifications and/or the experience he possesses to do the job. Under these circumstances, where it is clear that the individual demonstrates that he is not up to the task or has misrepresented his qualifications and his ability, the employer may have cause for termination. In this case, the termination would not constitute wrongful dismissal.

Where the employer measures competence/performance by output or results, the outcome is often influenced by a number of factors over which the employee may have little or no control. The difficulty of finding cause in such circumstances is aptly illustrated by one commentator as follows:

“Thus, a salesman who is not achieving sales quotas will, fairly or unfairly, implicate the manufacturing department for defective manufacture or late delivery, the marketing department for poor promotion, the service department for dealer resistance, his largest customer for being the subject of a takeover and the Bank of Canada for raising interest rates. To decide whether, and to what degree, these various factors affected sales results in a particular territory would require the wisdom of Solomon. When you recall that the employer has the onus of proving just cause, take into account the natural sympathy and concern of the Court for a terminated employee and the consequence of a finding of just cause, these extraneous factors can make it next to impossible to persuade a court that acts of incompetence constitute just cause for dismissal.”

Even where an employee’s poor performance is the result of his failure to carry out his responsibilities, just cause for termination may not exist if the employer failed to raise performance issues. Employers are obliged to advise employees if there are performance-related concerns and provide an opportunity to address them. What constitutes a sufficient warning to an employee before an employer can rely on continued poor performance as cause for termination? Courts have repeatedly indicated that expressions of dissatisfaction with an employee’s work are not enough. The employee must be advised of the standard of performance expected of him/her and notified that they have failed to meet that standard. He or she must be given a reasonable amount of time to improve performance and be advised that failure to do so could result in termination. One court has indicated that criticism of an employee’s performance must be constructive and will only be regarded as such where the employer has provided or offered practical guidance on how to improve.

In determining whether there is just cause for termination based on poor performance, the Courts do not treat all employees alike.  A finding of cause in such circumstances will often depend on the employee’s length of service with the company, any prior history of offences, and the quality of past performance as confirmed, for example, by performance evaluations. In other words, it will be more difficult for an employer to rely on poor performance as cause for termination where the employee has many years of service and a generally positive performance record.

Most Human Resource departments are well versed in the steps that need to be taken to build a case for cause based upon performance. Given what is at stake, individuals facing performance-related discipline are advised to consult with an employment lawyer as early as possible in the process, and preferably before the other shoe drops and they are confronted with termination. The earlier you seek the advice of an employment lawyer, the easier it may be to obtain an award for wrongful dismissal damages.